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R v Rose [1982] 2 All ER 731, HL...................................................................................715
R v Roth¬eld (1937) 26 Cr App Rep 103........................................................................346
R v Salt [1996] Crim LR 517...........................................................................................487
R v Samuel [1988] QB 615..............................................................................................177
R v Sang [1980] AC 402, [1979] 2 All ER 1222..............................................................478
R v Sargent [2001] UKHL 54, [2003] Crim LR 276 ......................................................703
R v Sat-Bhambra (1988) 88 Cr App Rep 55 ...................................................................474
R v Saville of Newdigate, ex p A [1999] NLJR 965 ........................................................431
R v Secretary of State for the Home Department, ex p Bentley [1993] 4 All ER
442................................................................................................................................720
R v Secretary of State for the Home Department, ex p Chubb [1986] Crim LR 809,
Div Ct...........................................................................................................................731
R v Secretary of State for the Home Department, ex p Gunn [2001] EWCA Civ 891,
[2001] 3 All ER 481 .....................................................................................................579
lvi Table of cases


R v Secretary of State for the Home Department, ex p Harrison [1988] 3 All ER
86..................................................................................................................................731
R v Secretary of State for the Home Department, ex p Hickey (No 2) [1995] 1 All
ER 490 ..........................................................................................................................728
R v Sellick [2005] Crim LR 722 ..............................................................................456, 458
R v Shaheed [2002] 2 NZLR 377, CA.............................................................................483
R v Shahzad [1996] 1 All ER 353 ....................................................................................484
R v Sharp [1993] 1 All ER 225 ........................................................................................381
R v She¬eld Crowm Court, ex p Brownlow [1980] QB 530 ........................................492
R v She¬eld Justices, ex p Turner [1991] All ER 1 858 .................................................368
R v Silcott, Braithwaite and Raghip (1991) Times, 9 December...................................476
R v Slinger (1961) 46 Cr App Rep 244 ...........................................................................700
R v Smith [1959] 2 QB 35 .......................................................................................471, 473
R v Smith [1990] Crim LR 354 .......................................................................................329
R v Smith [2005] UKHL 12, [2005] 2 All ER 29, [2005] Crim LR 476 ................534, 535
R v Smith (Lance Perceval) [2003] EWCA Crim 283, [2003] Crim LR 633.................499
R v Smith (Percy) [1976] Crim LR 511 ..........................................................................448
R v Smolinski [2004] 2 Cr App Rep 661 ........................................................................368
R v Soneji [2005] 3 WLR 303..........................................................................................155
R v Southampton Justices, ex p Green [1976] QB 11....................................................280
R v Sparkes [1956] 1 WLR 505 .......................................................................................713
R v Spencer [1986] 2 All ER 928.....................................................................................533
R v Stone [2005] EWCA Crim 105, [2005] Crim LR 569..............................................461
R v Stovell [2006] EWCA Crim 27, [2006] Crim LR 760..............................................420
R v Sultan Khan [1997] AC 58........................................................................................483
R v Sussex Justices, ex p McCarthy [1924] 1 KB 256.....................................................422
R v Swabey [1972] 2 All ER 1094....................................................................................713
R v Symons [2006] EWCA Crim 856, [2006] 2 Cr App Rep 23....................................368
R v Tahery [2006] EWCA Crim 529 ...............................................................................458
R v Taylor and Taylor (1993) 98 Cr App Rep 361 ..........................................................372
R v Thakrar [2001] EWCA Crim 1096 ...........................................................................686
R v Thomas (1989) 88 Cr App Rep 370 .................................................................498, 499
R v Thomas [2000] 1 Cr App Rep 447 ...........................................................................703
R v Thomas [2002] EWCA Crim 941, [2002] Crim LR 912 .........................................687
R v Thompson [1962] 1 All ER 65..................................................................................532
R v Thompson (1978) Times, 18 January ......................................................................470
R v Togher [2001] Cr App Rep 457, [2001] 3 All ER 463......................................703, 705
R v Tower Bridge Metropolitan Stipendiary Magistrates, ex p Chaudhry [1994]
1 All ER 44 ...................................................................................................................269
R v Townsend [1987] Crim LR 411................................................................................448
R v Turnbull [1977] QB 224 ...........................................................................................460
R v Turnbull [1984] 80 Cr App Rep 104 ........................................................................450
R v Turner [1970] 2 QB 321....................................................................................326, 328
R v Uxbridge Justice, ex p Heward-Mills [1983] 1 WLR 56..........................................280
R v Walhein (1952) 36 Cr App Rep 167 .........................................................................531
R v Wallace Duncan Smith [2002] EWCA Crim 2007, [2003] 1 Cr App Rep 648.......687
R v Wallwork (1958) 42 Cr App Rep 153 .......................................................................443
lvii Table of cases


R v Walsh [1989] Cr App Rep 161 ..........................................................................178, 480
R v Wang [2005] UKHL 9, [2005] 1 All ER 782 ............................................................525
R v Ward [1993] 2 All ER 577, (1993) 96 Cr App Rep 1, CA ........................291, 297, 299
R v Warley Magistrates Court, ex p DPP [1998] Crim LR 684.....................................337
R v Water¬eld, R v Lynn [1964] 1 QB 164 .....................................................................239
R v Waters [1989] Crim LR 62, CA ................................................................................477
R v Watson [1988] QB 690 .............................................................................................531
R v Wells [1995] 2 Cr App Rep 412 ................................................................................346
R v West [1996] 2 Cr App Rep 374 .................................................................................373
R v Westlake [1979] Crim LR 652 ..................................................................................472
R v Whybrow (1951) 35 Cr App Rep 141.......................................................................700
R v Williams (1992) Times, 6 February .........................................................................186
R v Wong Kam-Ming [1980] AC 247, PC ......................................................................467
R v Wood [1982] Crim LR 667 .......................................................................................448
R v Wright (1987) 90 Cr App Rep 91 .............................................................................443
R v X Justices, ex p J [2000] 1 All ER 183, Div Ct..........................................................185
R v Xhabri [2005] EWCA Crim 3135 .............................................................................458
R v Young [1995] QB 324 ...............................................................................................533
R v Z [1992] 2 QB 355.....................................................................................................443
R v Zaveckas [1970] 1 All ER 413 ...................................................................471, 473, 476
R (on the application of Bucher) v DPP [2003] EWHC Admin 580............................193
R (on the application of Campaign for Nuclear Disarmament) v Prime Minister
[2002] EWCA Admin 2712, Case AC9500930...........................................................584
R (Corner House Research) v Secretary of State for Trade and Industry [2005]
EWCA Civ 192, [2005] 4 All ER 1 ..............................................................................584
R (Cowl) v Plymouth City Council [2001] EWCA Civ 1935, [2002] 1 WLR 803 .......145
R (on the application of CPS) v Chorley [2002] EWHC 2162 Admin, (2002) 166
JP 764 ...........................................................................................................................279
R (on the application of CPS) v Registrar General of Births, Deaths and Marriages
[2002] EWCA Civ 1661, [2003] 1 All ER 540 ............................................................462
R (on the application of Daghir) v Secretary of State for the Home Deparment
[2004] EWHC 243.......................................................................................................732
R (on the application of DPP) v Havering Magistrates™ Court [2001] 1 WLR 805,
[2001] Crim LR 902, Div Ct .......................................................................................280
R (on the application of Factortame Ltd) v Secretary of State for Transport, Local
Government and the Regions (No 8) [2002] EWCA Civ 932, [2003] QB 381,
[2002] 4 All ER 97 .......................................................................................................642
R (on the application of Faulkner) v Secretary of State for the Home Department
[2005] EWHC Admin 2567 ........................................................................................204
R (Gazette Media Co Ltd) v Teeside Crown Court [2005] EWCA Crim 1983,
[2005] Crim LR 157 ....................................................................................................430
R (on the application of Gibson) v Winchester Crown Court [2004] EWHC 361,
[2004] Crim LR 839 ....................................................................................................367
R (Gillan) v Commissioner of the Metropolitan Police [2006] UKHL 12...................198
R (on the application of Jarrett) v Legal Services Commission [2001] EWHC
Admin 389, [2001] All ER (D) 111 (June).................................................................590
R (on the application of Joseph) v DPP [2001] Crim LR 489 ......................................263
lviii Table of cases


R (on the application of Laporte) v Chief Constables of Gloucestershire and
Thame Valley and the Commissioner of the Metropolitan Police [2004] EWHC
Admin 253, [2004] 2 All ER 874.................................................................................201
R (on the application of McGowan) v Brent Justices [2001] EWHC Admin 814,
[2002] Crim LR 412 ....................................................................................................422
R (Mondelly) v Metropolitan Police Commissioner [2006] EWHC Admin 2370 ......261
R (Mount Cook Land Ltd and Mount Eden Land Ltd) v Westminster City Council
[2003] EWCA Civ 1346...............................................................................................585
R (Mullen) v Secretary of State for the Home Department [2002] EWHC Admin
230, [2002] 1 WLR 1857 .......................................................................................731“32
R (Mullen) v Secretary of State for the Home Department [2004] UKHL 18,
[2004] 3 All ER 65, [2004] Crim LR 837....................................................................732
R (on the application of Murphy) v Secretary of State for the Home Department
[2005] EWHC Admin 140, [2005] 2 All ER 763........................................................731
R (on the application of O) v Harrow Crown Court [2003] EWHC Admin 868........278
R (O) v Harrow Crown Court [2006] UKHL 42, [2006] 3 All ER 1157 ......................278
R (on the application of O™Brien) v Independent Assessor [2003] EWHC Admin
855, [2003] NLJR 668..................................................................................................733
R (R) v Durham Constabulary [2002] EWHC Admin 2486, [2003] 3 All ER 419 ......256
R (R) v Durham Constabulary [2005] UKHL 21, [2005] 2 All ER 369 .......................256
R (S) v Chief Constable of South Yorkshire, R (Marper) v Same [2004] UKHL 39,
[2004] 4 All ER 193 .....................................................................................................225
R (S) v Waltham Forest Youth Court [2004] EWHC Admin 715, [2004] 2 Cr App
Rep 355 ........................................................................................................................433
R (Wardle) v Leeds Crown Court [2001] UKHL, [2001] Crim LR 468 .......................367
R (on the application of Wulfsohn) v Legal Services Commission [2002] EWCA
Civ 250, [2002] All ER (D) 120 (Feb) ........................................................................580
Ragho Prasad s/o Ram Autar Rao v R [1981] 1 All ER 319...........................................474
Raja (Representative for the Estate of Mohammed Sabir Raja, decd) v Van
Hoogstraten [2006] EWHC 1315, Ch ..........................................................................77
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380....................103
Rantzen v Mirror Group Newspapers [1993] 4 All ER 975...........................................508
Raphael Partners v Liam [2002] OJ No 3417, 10 September 2002 (Docket No
C36074) .......................................................................................................................643
Rastin v British Steel Plc [1994] 1 WLR 232, [1994] 2 All ER 641 .......................122, 129
Reid v R [1980] AC 343, PC............................................................................................715
Rennie v Frame [2005] SCCR 608..................................................................................332
Reynolds v Metropolitan Police Commissioner [1982] Crim LR 600....................206“07
Reynolds v Metropolitan Police Commissioner [1984] 3 All ER 649...........................231
Rice v Connolly [1966] 2 QB 414, Div Ct ..................................................161“2, 165, 167
Richard Saunders & Partners v Eastglen Ltd [1990] 3 All ER 946 ................................106
Ricketts v Cox [1982] Crim LR 184................................................................................162
Ridehalgh v Horse¬eld [2004] Ch 205, [1994] 3 All ER 848.........................................570
Rockwell Machine Tool Co Ltd v EP Barrus (Concessionaires) Ltd [1968] 2 All ER
98....................................................................................................................................87
Rogers v Merthyr Tyd¬l County Borough Council [2006] EWCA Civ 1134 ...............639
Rondel v Worsley [1969] 1 AC 191, HL .........................................................................571
Rowe and Davis v United Kingdom (2000) 30 EHRR 1, [2000] Crim LR 584 ............298
lix Table of cases


Royal Bank of Canada Trust Corpn Ltd v Secretary of State for Defence (2003)
Times, 14 May, Ch D...................................................................................................145
Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 550, (2001)
Times 11 May ................................................................................................................82
Rush & Tompkins Ltd v Greater London Council [1988] 3 All ER 737, HL .................60

Saif Ali v Mitchell & Co [1980] AC 198, HL ..................................................................571
Samonini v London General Transport Services [2005] EWHC 90001 (Costs),
19 January 2005 ...........................................................................................................649
Sander v United Kingdom (2001) 31 EHRR 1003.........................................................535
Saric v Denmark, Application no 31913/96, 2 February 1999 ......................................529
Sarwar v Alam [2001] EWCA Civ 1401, [2001] 4 All ER 541 ...............................649, 650
Saunders v United Kingdom (1996) 23 EHRR 313 .......................................163, 164, 708
Scarth v United Kingdom (1999) 27 EHRLR CD 37.............................................425, 428
Scott v Scott [1913] AC 417 ............................................................................................423
Scribes West Ltd v Relsa Anstalt [2004] EWCA Civ 965 ...............................................660
Secretary of State for the Home Department v JJ [2005] EWCA 1141 ........................216
Secretary of State for the Home Department v MB [2006] EWCA 1140 .....................216
Sefkali, Banamira, Ouham [2006] EWHC Admin 894 27 February 2006 ...................194
Sekhon [2003] 1 WLR 1655............................................................................................155
Sharratt v London Central Bus Co [2003] EWCA Civ 7128, [2003] 1 WLR 2487,
[2003] 4 All ER 590 .....................................................................................................638
Sharratt v London Central Bus Co (No 2) [2004] EWCA Civ 575, [2004] 3 All ER
325................................................................................................................................635
Sherman and Apps, Re (1981) 72 Cr App Rep 266........................................................208
Siporex Trade SA v Comdel Commodities Ltd [1986] 2 Lloyd™s Rep 48......................102
The Siskina [1979] AC 210 .............................................................................................102
Sisu Capital Fund Ltd v Tucker [2005] EWHC 2321, Ch, [2006] 1 All ER 167 ...........579
Smith v DPP [2001] EWHC Admin 55, [2001] Crim LR 735 ......................................193
SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All
ER 498, CA.....................................................................................................................99
Snook v Mannion [1982] RTR 321 ................................................................................225
Solutia UK Ltd v Gri¬ths [2001] EWCA Civ 61, [2001] 2 Costs LR 247 ....................567
Sparks v R [1964] 1 All ER 727, PC................................................................................446
Spicer v Holt [1977] AC 987, HL....................................................................................200
Squires v Botwright [1972] RTR 462......................................................................193, 194
SS Hontestroom (Owners) v SS Sagaporack (Owners) [1927] AC 37, HL ..................688
Sta¬ord v DPP [1974] AC 878........................................................................................716
Stanton v Stanton [2006] EWCA Civ 878 ......................................................................429
Starrs v Procurator Fiscal [2000] LRC 718.......................................................................19
Steel and Morris v United Kingdom (2005) Times, 16 February .................................590
Steele v Money [2005] EWCA Civ 96, [2005] 2 All ER 256 ............................................76
Stevens v Gullis [2000] 1 All ER 527 ..............................................................................112
Stevens v Walker [1936] 2 KB 215 ..................................................................................690
Stewart v Engel [2000]1 WLR 2268..................................................................................53
Stirland v DPP [1944] AC 315 ................................................................................699, 714
Storer v British Gas Ltd [2000] 1 WLR 1237 .................................................................428
Subramaniam v Public Prosecutor [1956] 1 WLR 965 .................................................448
lx Table of cases


Sumitomo Corpn v CrÈdit Lyonnais Rouse Ltd [2001] EWCA Civ 1152, [2002]
4 All ER 68 .....................................................................................................................92
Sunworld Ltd v Hammersmith and Fulham Borough Council [2000] 2 All ER 837,
Div Ct...........................................................................................................................677
Swain v Hillman [2001] 1 All ER 91, CA .........................................................................81
Swales v Cox [1981] 1 All ER 1115 .................................................................................226

Tanfern Ltd v Cameron MacDonald (Practice Note) 1 WLR 131 ........658, 659, 664, 691
Tarling, Re [1979] 1 All ER 981 ......................................................................................713
Taylor v Anderton [1995] 1 WLR 447, [1995] 2 All ER 420, CA ....................................94
Taylor v Chief Constable of Cheshire [1987] 1 All ER 225 ...........................................447
TGA Chapman Ltd v Christopher [1998] 1 WLR 12 ....................................................575
Theodoropoulas v Theodoropoulas [1964] P 311...........................................................60
Third Chandris Shipping Corpn v Unimrine SA[1979] QB 645 ..................................102
Thomas v Sawkins [1935] 2 KB 249 ...............................................................................226
Thompson v Metropolitan Police Commissioner [1997] 2 All ER 762........................509
Thompson v Thompson [1986] 1 FLR 212n .................................................................450
Three Rivers DC v Bank of England (No 3) (Summary Judgment) [2001] UKHL
16, [2001] 2 All ER 513 .................................................................................................49
Three Rivers DC v Bank of England (No 4) [2002] EWCA Civ 1182, [2002] 4 All
ER 881 ............................................................................................................................96
Three Rivers DC v Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR
1274..........................................................................................................................91, 92
Total Spares & Supplies Ltd v Antares SRL [2006] EWHC 1537, Ch ...........................576
Toth v Jarman [2006] EWCA Civ 1028 ..........................................................................382
Tri Level Claims Consultants Ltd v Kolionitis (2006) 15 CPC,(6th) 1241 ...................641
Trustor AB v Smallbone [2000] 1 All ER 811.................................................................428

Universal Thermosensors Ltd v Hibben [1992] 3 All ER 257 .......................................103
Uphill v BRB (Residuary) Ltd [2005] EWCA Civ 60, [2005] 3 All ER 264 ..........664, 665

Vapormatic Co Ltd v Sparex Ltd [1976] 1 WLR 939.....................................................103
Various Ledward Claimants Meadway HA [2003] EWHC 2551, QB...........................567
Vasiliou v Hajigeorgiou [2005] EWCA Civ 236, [2005] 3 All ER 17 ............................114
Ventouris v Mountain, The Italia Express [1991] 1 WLR 607, [1991] 3 All ER
472..................................................................................................................................92
Vernon v Bosley (No 2) [1999] QB 18, [1997] 1 All ER 614...................................89, 392
Verrechia v Metropolitan Police Commissioner [2002] EWCA Civ 605, [2002]
3 All ER 385 ...........................................................................................................86, 557
Vinos v Marks & Spencer Plc [2001] 3 All ER 784, CA...................................................75
Voise v Delavel 1 TR 11, 99 ER 944 ................................................................................532

W v Egdell [1990] 1 All ER 835 ......................................................................................391
Wallersteiner v Moir (No 2) [1975] 1 All ER 849 ..........................................................631
Ward v Guinness Mahon & Co [1996] 4 All ER 112 .....................................................573
Ward v James [1966] 1 QB 273, [1965] 1 All ER 563, CA .....................................504, 505
Waters v Bigmore [1981] Crim LR 408 ..........................................................................204
Watson Wyatt v Maxwell Batley (2002) Times, 15 November......................................145
lxi Table of cases


Waugh v British Railways Board [1980] AC 521, [1979] 2 All ER 1169, HL..................93
Webb v Webb [1986] 1 FLR 541 .....................................................................................450
Weight v Lang [1986] Crim LR 746................................................................................193
Weir v Secretary of State for Transport, 21 April 2005, unreported, QBD ..................584
Wershof v Metropolitan Police Commissioner [1978] 3 All ER 540 ....................201, 206
West Mercia Constabulary v Wagener [1981] 3 All ER 378 ..........................................240
Whitehouse v Jordan [1981] 1 All ER 267 .....................................................................689
Wilkey v BBC [2002] EWCA CIv 1561, [2003] 1 WLR 1 ................................................76
Williams v Home O¬ce [1981] 1 All ER 1151 ..........................................................94“95
Willmott v Atack [1977] QB 498 ....................................................................................165
Wouters, Case C-309/99 [2002] ECR I-1577 .................................................................813

X v Y [1988] 2 All ER 648 .................................................................................................98

Yams v Plender [2001] 1 WLR 32 ...................................................................................664
Yousif v Salama [1980] 1 WLR 1540 ..............................................................................103
Yuill v Yuill [1945] P 15, [1945] 1 All ER 183, 61 TLR 176...........................................380

ZYX Music GmbH v King [1995] 3 All ER 1 .................................................................107
Chapter 1

The organisation of trial courts




1. Introduction
The English courts system has developed slowly over centuries and still shows
many signs of its history but in recent decades there have been several major
changes and in the past few years the pace of reform has quickened.
Up to 1979 the courts, other than the magistrates™ courts, had been run by
the Lord Chancellor™s Department (LCD). In that year their administration
was transferred to an executive agency called the Court Service. That agency
was responsible for the functioning of the Supreme Court of England and
Wales (comprising the Court of Appeal, the High Court and the Crown
Court), county courts and seven tribunals. The running of the magistrates™
courts was not included. They were run by local committees under the
general supervision of the Home O¬ce until 1991 and since that date by the
LCD.1
In 2001, in his Review of the Criminal Courts System,2 Lord Justice Auld
recommended a ˜single and nationally funded administrative structure,
but one providing signi¬cant local autonomy and accountability™. This
proposal was accepted by Government. The Courts Act 2003 made the
necessary statutory changes to allow for the creation of Her Majesty™s Courts
Service (HMCS) as a new executive agency with some 20,000 sta¬. (Bringing
the magistrates™ courts into the national system doubled the complement
of sta¬.) The change took e¬ect in April 2005. HMCS is accountable to
the Lord Chancellor/Secretary of State for Constitutional A¬airs.3 HMCS

1
For the successive recent developments in the story of the administration of the magistrates™
courts see the 9th edition of the present work, pp. 29“31.
2
www.criminal-courts-review.org.uk.
3
On 12 June 2003, the Prime Minister, Mr Tony Blair, announced that the ancient
title of Lord Chancellor dating back to the eleventh century would be abolished and
replaced by the title Secretary of State for Constitutional A¬airs. The Prime Minister™s
announcement proved to be somewhat hasty. The Lord Chancellor™s Department
(LCD) was renamed the Department of Constitutional A¬airs (DCA) by a stroke of
the Prime Ministerial pen, but in the event the o¬ce of Lord Chancellor survived. The
holder of the o¬ce is now both Lord Chancellor and Secretary of State for Constitutional
A¬airs.
2 The organisation of trial courts


has forty-two areas each with an Area Director and an advisory Courts
Board.4
The highest court, the House of Lords, is outside this administrative
structure. Hitherto it has been run by the LCD, now the DCA. Under the
Constitutional Reform Act 2005, the House of Lords in its judicial capacity is
to be transformed into the new Supreme Court with its own administrative
structure including a chief executive. It will be situated in the Middlesex
Guildhall, opposite Parliament. Getting that building ready for its new role is
a major project that will take some years.5 It is not expected to be ¬nished
before the end of 2009. Until then, the House of Lords as the ¬nal court of
appeal will continue in its traditional home in the Palace of Westminster sitting
under its traditional title and administered as before by the Government
Department.
Calling the ¬nal court of appeal the Supreme Court necessitated a re-naming
of the existing Supreme Court of England and Wales. This will be known as ˜The
Senior Court of England and Wales™.6
The Constitutional Reform Act 2005 made other major constitutional
changes, the most important of which is the transfer of responsibility for the
appointment of the judiciary from the Lord Chancellor7 to a new Judicial
Appointments Commission with a lay chairman and a signi¬cant number of
lay members.8 The Act for the ¬rst time gives explicit recognition to the special
responsibility of the Lord Chancellor for the rule of law9 and for the indepen-
dence of the judiciary.10 There is however no longer any guarantee that the Lord


4
The Boards have seven members “ a judge, two magistrates, two people to represent the local
community and two people with experience of the courts in the area (lawyers, victim support,
advice agencies etc.).
5
The task was costed at £30 million. The cost of moving the old courts into new premises
would be another £20 million. (There is every reason to suppose that these would prove to be
considerable underestimates.) The costs of running the new Supreme Court would be of the
order of £8“10 million a year compared with £3“4 million in the House of Lords. For a
drawing of what the new Supreme Court would look like see Law Society™s Gazette, 14
6
September 2006, p. 4. Constitutional Reform Act 2005, s. 59(1).
7
For a description of the previous system see Sir Thomas Legg, ˜Judges for the new Century™,
Public Law, 2001, pp. 62“76. Legal Studies in March 2004 devoted the whole of issues 1 and 2
to judicial appointments.
8
The 2005 Act (Sch.12, para. 2) provides for the Commission to consist of a lay chairman, ¬ve
judicial members, two practitioners, ¬ve lay members, one tribunal member and one lay
justice The ¬rst chairman is Baroness Usha Prashar. The names of all but one of the other
fourteen appointees were announced on 23 January 2006. (See the Lord Chancellor™s
Ministerial Statement, House of Lords, Hansard, 23 January 2006, WS 45.) The Commission
was launched on 3 April 2006. The Act (Sch. 13) also provides for a lay Judicial Appointments
and Conduct Ombudsman whose duties would also commence on 3 April 2006.
9
Section 1 states that the Act does not adversely a¬ect ˜(a) the existing constitutional principle
of the rule of law, or (b) the Lord Chancellor™s existing constitutional role in relation to that
principle™.
10
Section 3 of the Act states that ˜the Lord Chancellor, other Ministers of the Crown and all with
responsibility for matters relating to the judiciary or otherwise to the administration of justice
must uphold the continued independence of the judiciary™.
3 The trial courts “ work and organisation


Chancellor will necessarily be either a member of the Upper House or a
lawyer.11
At least of equal importance is the so-called ˜Concordat™12 between the Lord
Chancellor and the Lord Chief Justice, a 28-page document setting out in detail
their respective roles in relation to a long list of topics.13
The chapter starts with a description of the existing trial courts structure.
(The appellate system is treated in Ch. 7.)


2. The trial courts “ work and organisation

(1) The civil courts
There are three di¬erent levels of trial courts for civil cases: the High Court, the
county court and the magistrates™ court.

The High Court
History14
The High Court is divided into three Divisions: the Queen™s Bench Division, the
Chancery Division and the Family Division. The High Court came into exis-
tence in the Judicature Acts of 1873“5, in replacement for the ancient Queen™s
Bench Court, Court of Common Pleas, Court of Exchequer, Chancery Court,
and the Probate, Divorce and Admiralty Court. Under the 1873“5 legislation
these ¬ve separate courts became the ¬ve Divisions of the High Court. In 1888
the three common law courts (Queen™s Bench, Common Pleas and Exchequer)
were merged into a single Division, the Queen™s Bench Division (QBD). The
Probate, Divorce and Admiralty Division was broken up by the Administration

11
Section 2 of the Act (headed ˜Lord Chancellor to be quali¬ed by experience™) provides that the
person who holds the o¬ce of Lord Chancellor must be someone who appears to the Prime
Minister to be quali¬ed by experience as a Minister, a member of either House of Parliament,
a practitioner, a university law teacher or ˜other experience that the Prime Minister considers
relevant™.
12
The Concordat is on the DCA™s Website as a consultation paper entitled Constitutional Reform:
The Lord Chancellor™s judiciary-related functions (since referred to as ˜the agreement™ and also
˜the Concordat™): www.dca.gov.uk/consult/lco¬ce/judiciary.htm. The Concordat was
negotiated on behalf of the judiciary by the Lord Chief Justice, Lord Woolf. For a lecture in
which he explains it see ˜The Rule of Law and a Change in the Constitution™, 63 Cambridge
Law Journal, 2004, pp. 317“30.
The topics dealt with in the Concordat include: key statutory responsibilities of the
Secretary of State and the Lord Chief Justice, judicial independence, judicial posts held by the
Lord Chancellor, leadership of the judiciary in England and Wales, oath-taking, provision of
resources, deployment, ˜leadership posts™, appointments to committees, boards and similar
bodies, the making of procedural rules for judicial fora, rule committee appointments,
Practice Directions, education and training, judicial complaints and discipline, judicial
appointments commission “ process and judicial appointments commission “ membership.
13
The remarkable story of the Constitutional Reform Act 2005 is the subject of a two-part
article by Lord Windlesham in Public Law, 2005, pp. 806“23 and 2006, pp. 35“57.
14
For an outstanding historical account see B. Abel-Smith and R. Stevens, Lawyers and the
Courts (Heinemann, 1967).
4 The organisation of trial courts


of Justice Act 1970 which allocated its functions between the QBD, the
Chancery Division and the new Family Division.

The High Court today
The jurisdiction of the High Court is to be found in the provisions of the
Supreme Court Act 1981.
The Queen™s Bench Division (QBD) This consists of the Lord Chief Justice and
some seventy High Court judges. It deals primarily with claims for contract and
tort. The largest single category of work is for goods sold and delivered, work
done, materials supplied or professional work done. The next largest categories
typically are claims for breach of contract, personal injuries and the recovery of
land or property.
The number of cases dealt with by the QBD has been declining dramati-
cally in recent years. One reason is the transfer of cases from the QBD to the
county court (see below pp. 11, 67). In 1990 the number of proceedings
started in the QBD was over 350,000. In 1997 it was down to some 121,000.
Four years later by 2001 it had slumped to a mere 21,600. In 2005 it was down
to 15,317!15
The QBD additionally has two special types of jurisdiction. One is the
Admiralty Court, previously part of the Probate, Divorce and Admiralty
Division until it was abolished by the Administration of Justice Act 1970.
Admiralty cases typically concern collisions at sea, damage to cargo and per-
sonal injuries su¬ered at sea. (In 2005 there were 102 claims issued in admiralty
cases but only three cases were actually tried!) The second category is the
Commercial Court, which has judges specially chosen for their experience to
try heavy commercial cases. (There are currently twelve Commercial Court
judges.) The cases consist of matters relating to ships, aircraft, insurance,
banking, carriage of cargo and the construction and performance of mercantile
contracts. Many of the cases have a strong international ¬‚avour. (In 2005 there
were almost a thousand (981) claims started.)
The Divisional Court of the Queen™s Bench Division exercises an important
¬rst instance jurisdiction by way of review of the acts of Ministers, their civil
servants and local councilors and o¬cials. Traditionally this was by way of the
ancient prerogative writs (certiorari, mandamus, prohibition and habeas corpus).
Then such cases were dealt with by an application for judicial review under what
was Order 53 of the Rules of the Supreme Court (RSC). The part of the QBD
that dealt with these applications was known as the Crown O¬ce List. From
October 2000 the Crown O¬ce List was renamed the Administrative Court.16
The applicant now applies for mandatory, quashing and prohibiting orders.
Unlike the position for ordinary actions, permission (formerly called ˜leave™) is

15
The ¬gures are to be found in the annual Judicial Statistics.
16
Practice Note [2000] 1 WLR 1654, [2000] 4 All ER 1071. For commentary see 20 Civil Justice
Quarterly, 2001, pp. 1“5 and Public Law, 2001, pp. 4“20.
5 The trial courts “ work and organisation


required to start such proceedings. Applications for permission are heard nor-
mally by a single judge. In 2005 there were 4,660 applications to apply for judi-
cial review in civil matters, of which more than half (58 per cent) concerned
immigration issues.
The Chancery Division The Chancery Division is the successor to the ancient
Chancery Court. It consists of the Vice Chancellor and seventeen High Court
judges. It deals with corporate and personal insolvency disputes, business, trade
and industry disputes, the enforcement of mortgages, professional negligence,
intellectual property matters, copyright and patents, trusts, wills and probate
matters. The Chancery Division also includes a specialist Companies Court and
Patents Court. In 2005 the total number of proceedings was just over 34,000, of
which some 14,000 were Companies Court matters and 13,000 were bankruptcy
petitions.
The Family Division The Family Division was created in 1970 when the
Probate, Divorce and Admiralty Division was split up. It consists of the
President and some seventeen High Court judges. It hears defended divorce
cases and ancillary disputes over children and property. It also deals with ward-
ship, guardianship of infants, adoption and legitimacy cases. The Family
Division nominally also deals with non-contentious probate work but in prac-
tice this work is handled by administrative or bureaucratic rather than by
judicial proceedings. (As will be seen, the Children Act 1989 established a con-
current family jurisdiction across the High Court, the county court and family
proceedings courts in the magistrates™ courts.)
There are two other special jurisdictions:
The Technology and Construction Court (TCC) “ formerly the O¬cial
Referees Court. The O¬cial Referees Court was renamed the Technology and
Construction Court in 1998. Its jurisdiction remained the same, namely
di¬cult or technical issues of fact on reference from the Queen™s Bench Division
or the Chancery Division after an application made by either party. Usually the
cases involve complex building and construction disputes. The judges used to
be Circuit judges (lower in the judicial hierarchy than High Court judges), but
on the renaming of the court in 1998, a High Court judge was put in charge (on
a part-time basis) and the O¬cial Referees were renamed ˜judges™ to be
addressed as ˜My Lord™ instead of ˜Your Honour™. In June 2005 the Lord Chief
Justice said that because of the number and importance of the cases heard by
the TCC the High Court judge in charge would in future be full-time. No fewer
than forty-one Circuit judges were engaged on these cases in London (seven
full-time) and eleven other court centres “ and twenty-three Recorders (part-
time judges) were authorised to hear TCC cases as and when required.17
In 2004“05 there were 655 TCC cases started and eighty-nine contested
trials “ thirty-eight in London and ¬fty-one in Birmingham, Salford and Leeds.18
17
[2005] 3 All ER 289.
18
Annual Report of the Technology and Construction Court, 2005. NB The Judicial Statistics are
plainly inaccurate in stating in Table 3.16 that there were only three contested TCC trials in 2005.
6 The organisation of trial courts


The Court of Protection This is responsible for the management and admin-
istration of the property and a¬airs of people su¬ering from mental disorder.
Most of the work is done by masters and deputy masters (see below) rather than
by judges, but judges of the Chancery Division and the Family Division do exer-
cise some of the powers. There are normally some 30,000 estates under admin-
istration.
The hands-on management of the a¬airs of patients unable to manage for
themselves is done by the Public Guardianship O¬ce (PGO) which was estab-
lished as an executive agency in 2001. Its main function is to promote the inter-
ests of its clients by overseeing the activities of Receivers appointed by the Court
of Protection.
In December 1997 the Government published a consultation paper, Who
Decides? Making Decisions on Behalf of Mentally Incapacitated Adults, based on
the recommendations of the Law Commission.19 This proposed that the Court
of Protection should cease to exist as an o¬ce of the Supreme Court and instead
become a superior court of record. By 2006 no decision on this issue had been
announced.

Judges in High Court cases
One of the features of the English system is the overlapping jurisdiction of
judges. The fact that a case is heard in the High Court does not mean that it will
be heard by a High Court judge. Thus in 2005 the High Court case load was
shared between High Court judges (56 per cent), Circuit judges (full-time
judges) (21 per cent), Deputy High Court judges (retired judges, practitioners
or experienced Circuit judges) (18 per cent), District judges (full-time judges)
(3 per cent) and Lords Justices of Appeal and Recorders (practitioners sitting as
part-time judges) (2 per cent).20

Interlocutory work in the High Court
Most trials are handled by judges, but the pre-trial (called ˜interlocutory™) work
is conducted in London by Masters in the Queen™s Bench and Chancery
Divisions and by District judges (formerly called registrars) in the Family
Division. Outside London there are no Masters. High Court interlocutory busi-
ness outside London is handled in District Registries by District judges who are
normally also the District judges for the county court. District Registries are
physically located in county courts. There are over a hundred District Registries.
All the District Registries deal with Queen™s Bench, Chancery and Family
Division work. Most, though not all, are authorised to take undefended divorce
cases. County courts are now divided into Civil Trial Centres and Feeder Courts.
Groups of feeder courts are supervised by designated Circuit judges who sit in
the trial centres.

19
Mental Incapacity (1995) Law Com. 231.
20
Source: Judicial Statistics, 2005, Revised, calculated from Table 10.2, p. 133.
7 The trial courts “ work and organisation


The county court
The county court was established in 1846 with a jurisdiction limited to £20 for
actions in contract and tort. Over the next 150 or so years its jurisdiction rose
from £20 to £5,000.21 In 1990 the ceiling was abolished. As from 1 July 1991
county courts were able to deal with all contract and tort claims and recovery
of land actions, regardless of value, plus equity matters where the value of the
trust fund or estate does not exceed £30,000. In practice, however, the great
majority of high value cases are handled by the High Court.
Most of the business of the county courts is money claims. Actions of this
kind are mainly for goods sold and delivered, work done, materials supplied and
professional fees. The other largest categories of work done by the county court
are undefended divorce22 and ancillary relief with regard to children and mat-
rimonial property and actions for the recovery of land and premises. The
county court also has an admiralty and equity jurisdiction, can hear contested
probate actions, and deals with bankruptcy and companies winding up.
There are two tiers of judges in the county courts. The lower tier (District
judges) deal with the case management work plus the great bulk of less compli-
cated/lower value hearings and most of the housing possession and family related
claims. The upper tier (Circuit judges) deal with the more serious cases, the trials
of care cases and the more di¬cult private law Children Act applications.

Small claims in the county court
A 1970 study of the county court by the Consumer Council (Justice out of Reach)
showed that individuals hardly ever used the county courts as plainti¬s. This led
to changes in county court procedure designed to make them more ˜user
friendly™ to ordinary citizens. The main reform was the introduction in 1973 of
what was originally called ˜arbitration™ but which soon came to be known as the
small claims procedure. This had several special features, notably, hearings in
private,23 less formal procedure, and costs rules under which each side basically
pays its own costs.24
The limit for small claims cases in 1973 was £75 but it has increased hugely
and is now £5,000 other than for personal injury and housing disrepair cases
where it is £1,000.25

21
During the ¬rst hundred years the jurisdiction was increased very slowly “ to £50 in 1850,
£100 in 1903 and £200 in 1938. In 1955 the jurisdiction of the county courts was raised to
£400. In 1966 it went up to £500, in 1969 to £750 and in 1974 to £1,000. It next jumped to
£2,000 in 1977 and in 1981 it was more than doubled to £5,000 “ and in equity matters
£30,000.
22
About three-quarters of the 220 county courts are authorised to deal with undefended divorce
work.
23
As will be seen, this has been changed. To make the procedure compatible with the European
Convention on Human Rights a trial now has to be conducted in public. See p. 424 below.
24
See further below “ with regard to small claims less formal trial methods, pp. 384“88, and
with regard to costs, pp. 577“78.
25
The £75 limit was raised to £200 in 1975. In 1979 it went up to £500 and in 1991 to £1,000.
Lord Woolf ™s Interim Report Access to Justice in June 1995 proposed that it be increased to
8 The organisation of trial courts


The reason for the di¬erence is to take account of the need for lawyers to assist
with such claims. The small claims system does not allow for recovery of lawyers™
fees whereas in claims outside the small claims system lawyers™ fees can be recov-
ered by the winning party. In personal injury and housing disrepair cases access
to the help of lawyers has been considered su¬ciently important to justify the
lower limit. In May 2004, the Government™s Better Regulation Task Force rec-
ommended that the Government should undertake research into raising the
limit for personal injury cases so that they were brought into line with the rest
of civil claims. This it said would ˜increase access to justice for many as it will be
less expensive, less adversarial and less stressful™.26 The Association of Personal
Injury Lawyers (APIL), unsurprisingly, labelled this proposal, which it said
would a¬ect more than half of all personal injury, ˜a disaster™,27 but it was not
just the personal injury lawyers who were opposed. A report published by the
Civil Justice Council agreed with APIL that the starting point for recovery of
costs in personal injury claims below £5,000 should remain at £1,000:28
There is no evidence to suggest that the resolution of personal injury claims
between £1,000“5,000 is working unsatisfactorily for the consumer. Only a very
small number of such claims do not settle and litigation to trial in these cases is
a very infrequent last resort . . . [T]here is simply no bene¬t to be gained by
raising the small claims limit in personal injury cases. Rather, any such move
that would remove cost recovery in such cases would work contrary to the public
interest by removing quality controlled and regulated law ¬rms from their role
in resolving such claims which are still important to the injured consumer. The
resulting gap in access to justice would be ¬lled either by unrepresented con-
sumers who would be unequal to the task of taking on the complexities of per-
sonal injury law, or by non-lawyers whose only means of remuneration would
be to deduct a contingency fee from the injured consumer™s damages.29
APIL™s view also received support from a MORI poll published in April 2005.
Footnote 25 (cont.)
£3,000, save for personal injury cases. This was implemented in January 1996. When
the ˜Woolf reforms™ were implemented in April 1999, the general jurisdiction was raised to
£5,000.
26
Better Regulation Task Force, Better Routes to Redress, May 2004, p. 27 “ www.brc.gov.uk. A
report by the House of Commons Constitutional A¬airs Committee in December 2005
recommended that the limit for personal injury cases and for housing could be raised to
£2,500 without disadvantage to claimants “ The Courts “ Small Claims, HC 519, December
2005. For earlier discussion of the question of raising the limit see J. Baldwin, ˜Increasing the
small claims limit™, 148 New Law Journal, 27 February 1998, p. 27; Monitoring the Rise in the
Small Claims Limit, LCD Research Series 1/97, Lord Chancellor™s Department, 1997 and Lay
and Judicial Perspectives on the Expansion of the Small Claims Regime, LCD, Research Series
8/02, September 2002.
27
The President of APIL was quoted as saying: ˜it cannot be right that someone who is not
legally trained is expected to put together a personal injury claim, gather medical reports and
work out how much compensation they are entitled to. Thousands of people . . . may ¬nd
bringing a claim against the person or company which injured them practically impossible™,
New Law Journal, 18 March 2005, p. 397.
28
Improved Access to Justice “ Funding Options and Proportionate Costs, September 2005 “
29
www.costsdebate.civiljusticecouncil.gov.uk. Ibid, p. 16, para. 2.
9 The trial courts “ work and organisation


According to the poll, 64 per cent of more than 2,000 respondents said they
would be unlikely to pursue their case without a lawyer and 80 per cent believed
that without a lawyer to help them they would not receive the right amount of
compensation from an insurance company.30
As the jurisdiction has expanded, the small claims system has assumed
increasing importance. In 1973, when it began, only 8 per cent of trials in the
county court were heard under the small claims procedure. A quarter of a
century later the proportion had soared ten-fold to over four-¬fths.31 In 2004
and 2005, it was 74 per cent and 73 per cent respectively.32 This has been an
astonishing development. Professor John Baldwin, the leading academic expert
on the small claims system, said of this,33 ˜it is no exaggeration to say that the
development of the small claims procedure in England and Wales has for many
years been slowly bringing about a revolution in civil procedures in the county
courts™.34

Magistrates™ courts
Magistrates™ courts have always had a signi¬cant jurisdiction in the civil ¬eld.
Most of it was in the ¬eld of domestic relations “ especially maintenance for
deserted wives and children, custody disputes, adoption, guardianship, and
protection of battered wives. A di¬erent kind of civil jurisdiction is the collec-
tion of various statutory debts such as income tax, national insurance, social
security, rates and legal aid contributions.
In the ¬eld of domestic relations there was a great deal of overlap between the
jurisdiction of the magistrates and that of the county court. The issue of what
to do about this jurisdiction culminated in the Children Act 1989 which led to
a signi¬cant re-casting both of the relevant law and of the responsibilities of the
di¬erent levels of civil courts. The magistrates™ courts functions in this ¬eld have
been renamed ˜family proceedings courts™.



30
New Law Journal, 8 April 2005, p. 529.
31
Between 1997 and 2003 the proportions were 83 per cent, 87 per cent, 87 per cent, 78 per
cent, 81 per cent, 80 per cent and 77 per cent.
32
Calculated from Judicial Statistics, the table headed ˜Proceedings disposed of by trial or small
claims hearing by region™ “ Table 4.7 or, in 2005, Table 4.8.
33
J. Baldwin, Lay and Judicial Perspectives on the Expansion of the Small Claims Regime,
September 2002, LCD Research Series, No. 8/02, p. 7. For an overall description of the system
see N. Madge, ˜Small Claims in the County Court™, 23 Civil Justice Quarterly, 2004,
pp. 201“11.
34
In June 2005 the Department for Constitutional A¬airs issued a consultation paper (CP
12/05) regarding a proposal from the European Commission for a European Small Claims
Procedure. The Commission™s suggestion was that the procedure should be available not only
for cross-border disputes but also for internal cases. The new system would be an alternative
to, not a replacement for, whatever already exists in Member States. The UK Government
welcomed the proposed new procedure but wished it to be con¬ned to cross-border cases “ a
view with which the House of Commons Constitutional A¬airs Committee agreed in its
report in December 2005 (n. 26 above).
10 The organisation of trial courts


Family court work
In 1974 the Finer Report35 recommended the setting up of a uni¬ed family
courts system to combat what it considered to be the chaotic e¬ect of the juris-
dictional split between the High Court, county courts and magistrates™ courts.
The report was not implemented. In 1986 an interdepartmental Review of
Family and Domestic Jurisdiction consultation paper canvassed various models
for the Finer Report™s proposed uni¬ed family court. Again, however, the
uni¬ed family courts project was not taken forward.
The Children™s Act 1989, implemented in 1991, established not a uni¬ed but
a concurrent family jurisdiction across all tiers of civil courts. All three courts
were given (albeit di¬ering) jurisdiction to act, though the rules provided that
certain business had to be started or tried in particular courts:
The High Court The High Court has jurisdiction to hear all cases relating to
children and has an exclusive jurisdiction in wardship cases. It also hears
appeals from family proceedings courts and cases transferred from the county
court or the family proceedings courts.
County courts There are county courts with no family jurisdiction. There are
divorce county courts which can issue all private law family law proceedings but
contested matters are transferred to family hearing centres for trial. Family
hearing centres can issue and hear all private law family law matters whether or
not they are contested. There are care centres which have full jurisdiction in
both private and public family law matters. There are also Specialised Adoption
Centres.
(Public law cases are those usually brought by local authorities or the NSPCC
and include care, supervision and emergency protection orders. Private law
cases are brought by individuals generally in connection with divorce or sepa-
ration.)
Family Proceedings Courts (magistrates™ courts) Full private and public law
jurisdiction except for divorce. Either lay magistrates alone or a District judge
sitting with lay magistrates. They have been specially trained.
Public law cases must start in the family proceedings court but can be trans-
ferred to the county court to minimise delay or where the matter is grave,
complex or important. (In 2005 there were a total 24,600 public law applications,
of which 64 per cent were heard in the family proceedings courts, 35 per cent
were heard in the county court and 1 per cent were heard in the High Court.36)
Private law cases can be started at any family proceedings court or county
court. (In 1992 private law applications ran at around 50/50 “ 52,900 in county
courts and 51,500 in family proceedings courts, but since then there has been a
dramatic shift. In 2005, 82 per cent of the 104,400 private law cases were heard
in the county courts as against 17 per cent in the family proceedings courts and
0.2 per cent in the High Court.37)

35
Report of the Committee on One-Parent Families, 1974, Cmnd. 5629.
36 37
Judicial Statistics 2005 (Revised), Table 5.1. Ibid.
11 The trial courts “ work and organisation


The Courts Act 2003 provided for a new uni¬ed set of rules in family law
matters. The new rules (the Family Procedure Rules or FPR) apply in all courts
exercising family jurisdiction.

The allocation of cases between higher and lower civil trial courts
Since 1846, when the county court was established, there has been the question
of the proper relationship of the High Court and the county court. The two
courts had concurrent jurisdiction up to the limit of the county court™s juris-
diction. As has been seen, it was repeatedly raised38 until 1991 when the ceiling
was abolished. There were costs incentives to encourage litigants to have the
case dealt with in the cheaper county court. Thus when the county court ceiling
was £5,000 and the plainti¬ in the High Court recovered less than £3,000 he was
penalised by getting his costs on the county court scale. If he recovered less than
£600 he got no costs at all.39 When the ceiling was abolished in 1991, the High
Court was given the power to reduce the costs recoverable by the successful
party by up to 25 per cent if it thought the case should have been brought in the
county court.40 The courts had the power to transfer cases up or down either at
the request of the parties or of its own motion.41 Despite these incentives, a sur-
prising number of cases within the jurisdiction of the county court were
brought in the High Court.
In 1988, the Civil Justice Review42 recommended that:
• The High Court and the county court should remain separate.
• There should be no upper limit for the jurisdiction of the county court.
• There should be a lower limit of £25,000 for cases in the High Court.
• All cases below that should be heard in the county court unless they involved
public law or specialist problems, or were cases of unusual complexity.
• Cases involving amounts between £25,000 and £50,000 should be heard in
either the High Court or the county court.
• All personal injury cases should start in the county court.
• Registrars should be given the title of district judge and have their jurisdic-
tion increased from £1,000 to £5,000.
The Lord Chancellor announced his broad acceptance of these proposals in
April 1989 and they were implemented by the Courts and Legal Services Act
1990. The e¬ect of the changes was that cases were allocated for trial according
to substance, importance and complexity. Generally, cases involving amounts


38
Always over the strenuous opposition of the Bar fuelled by the fact that barristers enjoyed a
monopoly over the right to appear in the High Court whereas in the county court barristers
and solicitors had an equal right of audience. For the history see B. Abel-Smith and R.
Stevens, Lawyers and the Courts (Heinemann, 1963).
39
County Courts Act 1959, ss. 19, 20.
40
Courts and Legal Services Act 1990, s. 4 amending s. 51 of the Supreme Court Act 1981.
41
Supreme Court Act 1981, Sch. 3, para. 8 inserting new s. 75A, Band C into the County Courts
42
Act 1959. See also Practice Direction [1991] 3 All ER 349. Cm. 394.
12 The organisation of trial courts


below £25,000 were to be tried in the county court, those involving amounts
above £50,000 in the High Court, and amounts in between, in either court
depending on the criteria and judicial availability.43
However within those parameters and subject to the court™s power to trans-
fer a case, the choice of level of court was left to the parties. This continued until
the implementation in 1999 of ˜the Woolf reforms™ based on two reports, both
entitled Access to Justice44 by Lord Woolf.45
The origin of the Woolf inquiry on civil justice was the Lord Chancellor™s
request to Lord Woolf to remove unnecessary di¬erences between the proce-
dural rules of the High Court and the county court. Lord Woolf got the Lord
Chancellor™s approval for expansion of this original remit to a much wider brief.
It turned into a wide-ranging re-examination of the whole of the civil justice
process.
In his Interim Report in June 1995 Lord Woolf proposed that the rules of the
High Court and the county court should basically be the same (and that he
would produce a draft of a single code of rules for High Court and county court
cases), that an action could be commenced at any court and that the court
rather than the parties should have the responsibility for allocating the case to
the appropriate track. He suggested that these recommendations ˜will mean that
the question of whether a case is a High Court or a county court case will be of
reduced signi¬cance™.46
Lord Woolf ™s proposal, implemented in 1999, was that, in addition to the
existing small claims track, there should be two new tracks “ the ˜fast track™ for
cases involving amounts between £5,000 and £15,000 unless they were unsuit-
able for that track because of their complexity or importance and the ˜multi-
track™ for cases involving sums above £15,000 or which were not suitable for the
fast track. Lord Woolf envisaged that fast track cases would be handled in the
county court but that multi-track cases would ˜straddle™ the High Court and the
county court with procedural judges allocating the cases to the appropriate level
of court.47

43
Practice Direction [1991] 3 All ER 722.
44
Access to Justice, Interim Report, 1995; Final Report, 1996. For a book of essays commenting
on the Interim Report see The Reform of Civil Procedure “ Essays on Access to Justice (eds.
Zuckerman and Cranston, OUP, 1995). See also the lengthy note in 14 Civil Justice Quarterly,
1995, pp. 231“49. The Woolf reforms are enshrined in the Civil Procedure Rules (CPR).
They can be accessed on the Website of the Department for Constitutional A¬airs “
www.dca.gov.uk.
The writer was one of the few commentators who was basically opposed to the Woolf
reform project “ on the ground that it would have more adverse than bene¬cial results . See
especially M. Zander, ˜The Woolf Report: Forwards or Backwards for the new Lord
Chancellor?™ 16 Civil Justice Quarterly, 1997, pp. 208“27. For consideration of the pros and
cons of the issues raised see pp. 132“40 below.
45
In 1994 when he was ¬rst asked to undertake the project Lord Woolf was a Law Lord. In 1996,
when he completed his report, he was Master of the Rolls. In 2000 he became Lord Chief
46
Justice. He retired in 2005. Interim Report, p. 73, para. 4.
47
For the di¬erent characteristics of the fast track and the multi-track cases see p. 50 below; for
allocation to tracks see p. 78 below.
13 The trial courts “ work and organisation


Toward a unified civil courts system
Lord Woolf rejected the suggestion that the High Court and the county court
should be merged or amalgamated. One reason was the constitutional need to
preserve the separate status of the High Court bench. This would be more
di¬cult if there were a single civil court, but his reforms would move the system
toward a closer alignment of the two levels, in particular through common rules
of procedure and common though not identical jurisdictional rules and
powers. The proposed new Head of Civil Justice would have responsibility for
the management of civil cases throughout the system. Outside London the High
Court and the county court shared the same buildings. Their administration
was separate but that would be unnecessary when the common rules of proce-
dure were introduced.48
In the last edition of this work in 2003 the writer said, ˜the question of the
possible amalgamation of the High Court and the county court seems to have
disappeared as an issue™. This proved to be mistaken. In February 2005 the
Department of Constitutional A¬airs published a consultation paper entitled A
Single Civil Court?49 The paper (CP) outlined what a uni¬ed jurisdiction might
look like and asked whether the proposed model, which included the Family
Proceedings Courts, was feasible and appropriate. The CP said, ˜it has been
argued that unifying these jurisdictions would represent the next logical step
following the fundamental reforms of civil procedure introduced in 1999™.50
The CP suggested that there were three broad options. One was to do nothing.
A second was to simplify and streamline the system further by secondary legis-
lation. The third was to introduce primary legislation which would:
• Abolish the county courts.
• Create a new Civil Court.
• Adjust the powers, procedure and judiciary to ensure that it had all the
features of a court covering all that the High Court and the county courts
now do.
The title and special status of High Court judges would be preserved and certain
powers would be reserved wholly or mainly to them. So, for instance, judicial
review could be reserved to High Court judges and Circuit judges or Recorders
speci¬cally authorised by the Lord Chief Justice, but generally there would be
few statutory restrictions on what cases could be tried by the di¬erent tiers of
judges. It would be for the judiciary to make the necessary detailed rules about
allocation of work between tiers through rules, Practice Directions etc.
The arguments for unifying the High Court and the county courts applied
equally to the family law area. The arguments suggested a case for a single
Family Court alongside the single Civil Court to handle all the family law busi-
ness currently undertaken in the High Court, the county court and the Family
Proceedings Courts (FPCs). That would have the e¬ect of giving lay magistrates

48 49 50
Interim Report, pp. 73“5. CP 06/05. At p. 6.
14 The organisation of trial courts


greatly increased powers “ though rules could restrict their jurisdiction in par-
ticular categories of work. (As has been seen, a single family court had been the
chief recommendation of the Finer Committee in 1974.)
Consideration would have to be given to the various specialist courts “ the
Patents Court, the Admiralty Court, the Commercial Court (and its county
court equivalent, the Mercantile Court), the Administrative Court, the
Companies Court, the Bankruptcy Court and the Technology and Construction
Court. Of these, only the ¬rst three were recognised in statute. With one excep-
tion, the CP suggested, there would be no reason to retain any statutory provi-
sion for specialist jurisdictions. The judiciary would provide for them through
rules and Practice Directions maintaining all or some of those that now exist
and adding others in future. The exception might be the Commercial Court in
order to preserve its international prestige and status.
The CP also addressed the question whether the divisions of the High Court
(QBD, Chancery and Family) had any remaining role. This topic was consid-
ered in the 1987 Civil Justice Review General Issues consultation paper which
commented that there was no comprehensive planning or forecasting proce-
dure available for the purpose of reviewing the total workload of the High Court
and its Divisions. Each Division managed its a¬airs virtually independently of
the others which stood in the way of overall management of civil business.51
Professor Ian Scott, one of the country™s leading experts on courts™ manage-
ment, wrote: ˜it may be argued that the present three-fold Division structure
stands in the way of development of a range of procedures suited to the many
varieties of business arising in the High Court and that what is required nowa-
days is not three divisions but multiple, “substance-sensitive” procedural and
administrative arrangements re¬‚ecting the wide jurisdiction of the Court™.52
Lord Woolf in his Interim Report in 1995 said that it could be argued that sep-
arate practices and a separate culture between the Chancery and the Queen™s
Bench Divisions might cause di¬culties for outsiders. On the other hand, the
Chancery Division provided a convenient umbrella for a number of specialist
jurisdictions which were serviced by specialist judges and specialist members of
the bar. These jurisdictions, which included companies, bankruptcy and the
administration of estates and trusts, were of a quasi-administrative nature and
required a di¬erent approach from other litigation. The sense of team spirit
among the Chancery judges and their special relationship with the Chancery
Bar resulted in a more e¬ective and e¬cient disposal of work. Moreover, if the
Chancery judges were amalgamated with the judges of the QBD they might
just be absorbed to meet the needs of the QBD. Lord Woolf ™s conclusion was
that it was not desirable, at least at that stage, to merge the two Divisions.53
Implementing his other recommendations would involve other changes of a
very substantial nature and it was preferable not to add to those changes the

51 52
CP, para. 68. 8 Civil Justice Quarterly, 1989, p. 5.
53
Interim Report, p. 77, para. 23.
15 The trial courts “ work and organisation


upheaval that a merger of the two Divisions would involve.He would, however,
follow the suggestion that judges should be nominated to lists according to their
expertise, regardless of which Division to which the lists belonged. So a judge
could be attached not only to lists in the Chancery Division but also to the
Commercial Court in the QBD. If, however, the retention of the Chancery
Division proved inimical to the uniform and ¬‚exible approach which he con-
sidered essential, the question of a merger could be reconsidered.
In his Final Report, Lord Woolf con¬rmed that he accepted that, although the
administration of the two divisions should be brought closer together, they
should not be merged.54
The DCA™s 2005 CP did not argue the case. It said there were three broad
options. One was to abolish the concept of divisions altogether. The second was
to retain the divisions basically as now with a Family Court (if established) and
a Civil Court divided into Queen™s Bench and Chancery divisions with the divi-
sions then incorporating the various specialist courts/lists. Consideration
would be required as to whether to extend the concept of divisions to judges of
the Circuit and District benches. The third option would be to change the
concept so that divisions no longer applied to the issue and allocation of busi-
ness but referred rather to groupings of judges.
The responses to the consultation paper were published on 19 October 2005.55
There had been 131 responses. Some two-¬fths of respondents (41 per cent)
were said to be broadly in favour of the idea of a uni¬ed civil court, just under a
third (31 per cent) were broadly against, with the remainder (28 per cent)
neutral. Judges and solicitors were more in favour, barristers were more against.
On the same day the Lord Chancellor announced that he had concluded that
reform to create single Civil and Family Courts would be feasible and bene¬-
cial: ˜the idea of unifying the civil and family court jurisdictions has been gath-
ering momentum for many years. We will be reforming the system to create a
structure suitable for twenty-¬rst century customer needs “ making the courts
simpler to understand and to access™.56 This would be a long-term project. In
the meanwhile, further steps would be taken to streamline the system and to
improve e¬ciency.
A consultation paper issued that day (Focusing judicial resources appropri-
ately)57 outlined some of those steps. The CP considered the size, nature and rel-
ative position within the justice system of the judges of the High Court. It
proposed that more should be done to ensure that High Court judges were
reserved for cases that required that level of experience and competence. The
exceptional features of cases requiring a High Court judge it suggested were: (1)
the unusual complexity of the case either in points of law or points of fact or
specialist evidence; (2) public impact, importance and signi¬cance (for instance

54 55
Final Report, p. 261, para. 6. DCA, CP (R) 06/05.
56
Press Release, Government News Network, DCA 265/05, 19 October 2005.
57
DCA, CP 25/05.
16 The organisation of trial courts


˜right to life™ cases or ones involving high pro¬le litigants or witnesses) and (3)
cases raising points of law that would set precedents. If a claim were issued in
the High Court it would need to be backed by a certi¬cate explaining the
reasons. A procedural judge would monitor the allocation process.
There could be four categories of case:
• Category 1 “ Must be heard by a specialist High Court judge “ such as most
judicial review cases or cases claiming a declaration of incompatibility with
the European Convention on Human Rights.
• Category 2 “ Must be heard by a High Court judge or a Deputy High Court
judge “ such as cases involving claims of over £5 million.
• Category 3 “ Could be heard by a High Court judge or by a less senior judge
(but would normally be heard by Recorders or others sitting as Deputy High
Court judges). Examples would be claims involving claims of £1“5 million.
• Category 4 “ Not heard by High Court judges.
The DCA published the responses to the consultation paper on 18 September
2006 “ www.dca.gov.uk (103 pages).


(2) The criminal courts
There have always been two levels of criminal court. Prior to 1972 the higher
level consisted of Assize courts and Quarter Sessions courts. These were
replaced by the Crown Court.

The Crown Court
The Crown Court dates from 1 January 1972, the day on which the Courts Act
1971 came into force. The 1971 Act was the result of the Report of the Royal
Commission on Assizes and Quarter Sessions.58 The Royal Commission under the
chairmanship of Lord Beeching was set up to investigate and propose reforms
to a system that had remained substantially unchanged for centuries.
The Royal Commission found that the then existing system was seriously
defective. The ancient assize towns were no longer necessarily main centres of
population; the fact that the same judge did both civil and criminal work
meant that the civil cases always had to wait for the more urgent criminal cases
to be ¬nished ¬rst; the sittings of the assize courts were ¬xed long before
anyone had any idea as to the likely case load; when the allotted time was up
the judge had to go to the next assize town, rather than ¬nish the list; the judges
spent too much of their time on the road travelling between assize towns and
whilst he and the court sta¬ were all travelling, the entire courts system was
inaccessible.
The solutions recommended by the Beeching Commission to the ills it had
diagnosed were clear cut:

58
1969, Cmnd. 4153.
17 The trial courts “ work and organisation


• The abolition of Assizes and Quarter Sessions and their replacement by a new
higher criminal court to be called the Crown Court. This court would sit as
and where needed. The siting of Crown Courts would be based on the prin-
ciple ˜that virtually the whole population will be within reasonable daily trav-
elling distance of at least one such site, and that no regard shall be paid to civic
boundaries established for other purposes™.
• The division of the criminal from the civil business of the higher courts so
that civil litigants would no longer have to wait for the completion of crimi-
nal cases.
• Instead of the judges processing from town to town, they should to a much
greater extent sit in court centres in permanent or more or less permanent
session. In addition, there should be mini-circuits to handle the criminal
work that could not be dealt with in the main court centres.
• Cases should be divided into di¬erent categories and allocated to judges by
reference to their gravity and the level of seniority of judge required.
• The judges should all be able to sit in any Crown Court anywhere in the country.
• County court judges should be restyled Circuit judges, who should sit both in
Crown Courts to conduct criminal cases and in county courts to conduct civil
business.
• There should be a new title of Recorder for part-time judges eligible to sit in
any Crown Court, who could be solicitors as well as barristers.
• The country should be divided into six, as compared with the previous seven,
circuits. Each circuit should be run by two Presiding judges and a Circuit
administrator.

The Royal Commission was set up by a Labour Government. Its report was
implemented by the incoming Conservative Government. It accepted every one
of the recommendations listed above. The Courts Act 1971 provided for the
establishment of the Crown Court, whose business was to be handled by High
Court judges, Circuit judges and Recorders. (The Crown Court for the City of
London was, however, allowed to keep its hallowed name ˜The Central Criminal
Court™, otherwise known as the Old Bailey.)
The Crown Court sits at some 90 locations throughout the country. The
court centres are of three kinds. First-tier centres are those visited by High
Court judges, Circuit judges and Recorders for the full range of Crown Court
work “ as well as by High Court judges of the Queen™s Bench Division and
Family Division for civil work. Second-tier centres are those at which Crown
Court work (but not civil business) is dealt with by High Court judges, Circuit
judges and Recorders. Third-tier centres are those visited only by Circuit judges,
Recorders or Deputy Circuit judges.
At the start of the 1990s the number of cases committed for trial in the Crown
Court was around 100,000 per year. In 1993 the ¬gure dropped to 86,800 and
since then it has ¬‚uctuated between a high of 91,100 (in 1997) and a low of
71,000 (in 2000). In 2005 it was 80,000.
18 The organisation of trial courts


The distribution of business in the Crown Court is governed by directions
given by the Lord Chief Justice with the concurrence of the Lord Chancellor.59
These divide o¬ences, for the purposes of trial, into three (formerly four)60
classes.
The most serious (Class 1) are generally to be tried by a High Court judge.
They include treason, murder and espionage, but murders can be released by or
on the authority of the Presiding judge for trial by a Deputy High Court judge,
a Circuit judge or a Deputy Circuit judge who has been approved (˜ticketed™) for
the purpose.
O¬ences in Class 2 must be tried by a High Court judge unless released by,
or on the authority of, a Presiding judge for trial by a Circuit judge or Recorder.
The o¬ences include manslaughter, rape and abortion. Rapes and other serious
sex o¬ences can only be released to judges who have been ticketed for such trials.
Cases in Class 3 can be heard by any judge eligible to sit in the Crown Court
though they are normally heard by a Circuit judge or Recorder. They include
grievous bodily harm with intent, robbery and conspiracy and all ˜either-way™
o¬ences.

Committals for sentence only
Crown Courts have also had a jurisdiction in sentencing defendants who were
committed for sentence only by magistrates once the case had been concluded
in the magistrates™ courts. (In 2005 the Crown Court dealt with 32,300 such
committals.) This jurisdiction in the Crown Court was exercised by a judge
sitting with two lay magistrates. In his Review of the Criminal Courts, 2001, Lord
Justice Auld recommended that this jurisdiction be abolished “ a recommen-
dation that the Government moved to implement in the Criminal Justice Act
2003.61

Appeals heard by the Crown Court
The Crown Court also has a jurisdiction in hearing appeals in respect of con-
viction and/or sentence in criminal cases decided by magistrates. (In 2005, there
were 12,800 such appeals.) These are heard by a judge sitting with two, or some-
times one, lay magistrate. The judge should be the resident judge or a speci¬-
cally designated judge or an approved experienced Recorder but failing that,
another judge can be selected.

Crown Court judicial manpower
It is instructive to consider what has happened with regard to the requirements
of judicial manpower since the Beeching Report in 1969 not yet forty years ago.

59
The Consolidated Criminal Practice Direction III.21.1“2 and IV 33. [2002] 3 All ER 904 at
914, 923 as amended on 26 May 2005.
60
The four classes became three in June 2005.
61
See p. 321 below. As will be seen, most of the proposed change was included in the Act but
implementation was postponed.
19 The trial courts “ work and organisation


The Beeching Report estimated that there would be a need for some 150 full-
time Circuit judges and 120 part-time Recorders “ totalling 270.
In fact, as at September 2006, there were 637 Circuit judges and 1,363
Recorders “ a total of exactly 2,000, almost a ten-fold increase.
In 2005, Crown Court work was divided between the di¬erent levels of judges
as to 4 per cent by High Court judges, as to three-quarters (74 per cent) by
Circuit judges and as to two-¬fths (20 per cent) by Recorders.62 The remaining
2 per cent was handled by Deputy High Court and Deputy Circuit judges.63

™Ticketing™ of judges
The system of ˜ticketing™ judges as suitable for particular types of cases was crit-
icised by Lord Justice Auld in his Review of the Criminal Courts. There were, for
instance, some 50 Circuit judges approved to try murder cases and another 25
who were approved to try attempted murder. There were about 340 Circuit
judges approved to try rape or other serious sexual o¬ences. This system of
selection involved the Lord Chief Justice, the Senior Presiding judge, the
Presiding judges, the Resident judge of each court centre and his listing o¬cer.
The system, Lord Justice Auld said, was ˜unduly bureaucratic and rigid™.64 It was
a rough-and-ready means of marking suitability. It also made for invidious dis-
tinctions between judges. The system, he suggested, should be changed by
giving Resident judges responsibility for allocating cases at their court centres “
subject to regular and systematic appraisal to determine the experience and
interests of judges and a precondition of appropriate training by the Judicial
Studies Board before taking particular types of cases.

Magistrates™ courts
Magistrates™ courts, which are manned mainly by lay justices, handle over 96
per cent of all criminal cases. In 2005 there were 1.9 million cases tried in mag-
istrates™ courts. Of these, nearly half (45 per cent) were minor motoring charges,
just under one-third (30 per cent) were other summary cases that could only
be tried in the magistrates™ courts, and the remaining one-¬fth (22 per cent)
were cases that could have been tried in the Crown Court but the defendant
chose instead to have the case dealt with summarily before the magistrates.65

62
Until 2000 part-time judges started as Assistant Recorders. This rank of judge was abolished
in light of the Scottish decision in Starrs v. Procurator Fiscal [2000] LRC 718 in which the High
Court of Justiciary held that temporary sheri¬s were insu¬ciently independent of the
executive for the purposes of Article 6 of the European Convention on Human Rights because
they had insu¬cient security of tenure. This was felt to apply equally to Assistant Recorders in
England and Wales. In April 2000 the LCD announced that in future part-time judicial
appointments would be for ¬ve years with a right of automatic renewal save in cases of
misconduct or incapacity. For the various decisions taken by the Lord Chancellor after a
review of the implications of the decision see Judicial Appointments Annual Report 1999“2000,
paras. 2.14“2.18.
63
Calculated from Table 10.2 in Judicial Statistics 2005, p. 134. (The total of Crown Court days
sat in the published text is stated as 86,010. It should be 93,526.) 64 Auld, para. 22, p. 236.
65
Criminal Statistics, Home O¬ce, RDS, 19/06, Fig. 2.1, p. 12.
20 The organisation of trial courts


(On this last category, called ˜either-way™ o¬ences, see further pp. 316“17
below.)
There are some 450 magistrates™ courts, some of which sit every day, some of
which sit only occasionally. They are manned by just under 29,000 lay “ and
unpaid “ magistrates and by some 135 professional, full-time and paid magis-
trates formerly called ˜stipendiaries™ and from 1999 called District Judges
(Magistrates™ Courts).66 The lay justices typically sit once a week or once every
two weeks.67 The jurisdiction of the District Judges (Magistrates™ Courts) is the
same as that of the lay justices except that the District Judge normally sits on his
or her own,68 whereas the lay justices sit with one or, more usually, two others.
Whatever its composition, the magistrates™ court is supposed to have a court
clerk who is supposed to be appropriately quali¬ed to advise the bench on law
and procedure.69
Considering the vast amount of attention given by commentators to trial by
jury, trial in the magistrates™ court gets very short shrift. The point was made
forcefully by Dr Penny Darbyshire, a court clerk turned academic, with a for-
midable array of evidence. She pointed to the fact that by far the majority of
criminal cases are heard in the magistrates™ courts and that numerically there
were far more contested trials in the magistrates™ courts than in the Crown
Court. (˜The decisions which matter are those of the police and prosecutors as
to charge, the defendant™s decision as to plea and the magistrates™ decisions as
to verdict and sentence, aided by their clerks; yet the making, teaching and
analysis of criminal law and evidence often proceeds as if things were as in
Blackstone™s day™.70) Juries heard only 1 per cent of all criminal cases that come
before the courts; magistrates sentenced about 95 per cent of all defendants who
come before the criminal courts.
There had been an enormous growth in the jurisdiction of the magistrates
during this century with indictable-only o¬ences downgraded to either-way and
either-way o¬ences to summary-only.71 (˜The list of o¬ences triable by magis-
trates includes: causing death by aggravated vehicle taking, wounding or in¬‚ict-
ing grievous bodily harm, cruelty to and abduction of children, indecent assault
and many other sex o¬ences, most burglaries, thefts, frauds and forgeries, arson
not endangering life, manufacturing, supplying and misusing all illegal drugs,
some perjury, all betting and gaming o¬ences and most ¬rearms o¬ences™.72)

66
The change of title was made in the Access to Justice Act 1999, s. 78. For the history of the
o¬ce see P. Seago, C. Walker and D. Wall, ˜The Development of the Professional Magistracy
in England and Wales™, Criminal Law Review, 2000, pp. 631“51.
67
The basic rule is a minimum of twenty-six half-day sessions per year but in practice they often
sit much more.
68
However a District Judge sits with lay justices in Family Proceedings Courts and in Youth
69
Courts. On the issue of the quali¬cation of court clerks see pp. 31“32 below.
70
P. Darbyshire, ˜An Essay on the Importance and Neglect of the Magistracy™, Criminal Law
Review, 1997, pp. 627“43 at 643.
71
See pp. 00“00 below for explanation of the distinction between these categories.
72
Criminal Law Review, 1997, 627 at 630.
21 The trial courts “ work and organisation


Magistrates also dealt with almost all young o¬enders. (˜The importance of
the youth court is impossible to exaggerate . . . [but] it is a jurisdiction almost
entirely forgotten in traditional law books and by the public, probably because
it goes on behind closed doors, unreported™.73) The Attorney General had the
power to appeal an unduly lenient sentence given by the Crown Court (p. 667
below). There was no equivalent for unduly lenient sentences given by magis-
trates. The decisions of the Divisional Court on appeal from the magistrates™
court got far less notice in the law reports than decisions of the Court of Appeal.
(˜When the Court of Appeal or House of Lords develop criminal law and evi-
dence they speak in the language of trial on indictment and pay no regard to
how their reasoning will apply to summary trial. Stipendiaries and justices™
clerks are left to agonise on how to translate these rationes into their world, in
articles sounding exasperated, in The Justice of the Peace and Local Government
Law™.74)
The same blindness, she suggested, a¬ected many academics.75 Again, the
Runciman Royal Commission on Criminal Justice had focused almost exclu-
sively on trials on indictment. The legislation that followed the Runciman
Report had been ¬‚awed in its application to magistrates™ courts.76 Part of the
problem lay in the weakness of justices™ clerks, court clerks and magistrates as a
lobbying force. Even the Law Commission was capable of producing reform
proposals that completely ignored summary proceedings.
In a subsequent article,77 Dr Darbyshire critically examined the rhetoric
about magistrates. The magistrates on the whole had a poor reputation. (˜Praise
of the magistracy is as rare as pro-jury rhetoric is common™.78) Almost no one
extolled the virtues of the magistracy who was not either a magistrate or the
Lord Chancellor of the day addressing magistrates. Blackstone “ ˜for whom the
jury was the most admirably constituted fact-¬nding body in the world™ “ had
deplored the mischiefs that resulted from demoting cases from jury trial to trial
before justices. In modern times Mr Michael Mans¬eld QC dismissed magis-
trates in his book Presumed Guilty (1993) with only a page of discussion. Lord
Gi¬ord QC in his book Where™s the Justice? (1984) described lay justices as
˜white, middle class, middle-aged people sitting in judgment over young,
working class and often black defendants™. Mr Geo¬rey Robertson QC con-
demned lay justices as ˜ladies and gentlemen bountiful™, politically imbalanced,
unrepresentative of ethnic minority groups, and women, who ˜slow down the
system and cost a fortune™. We should replace them, he told the House of


73 74
Ibid at 633. Ibid at 635.
75
The writer was one of those criticised for the disparate treatment in this book of trial by jury
and trial by magistrates (ibid, p. 637). I am indebted to Dr Darbyshire for prompting the
addition of this section.
76
Dr Darbyshire instanced the botched attempt at abolition of committal proceedings, the new
rules on disclosure and on preparatory hearings (ibid, p. 638).
77
˜For the New Lord Chancellor “ Some Causes for Concern about Magistrates™, Criminal Law
78
Review, 1997, pp. 861“74. Criminal Law Review, 1997, p. 861.
22 The organisation of trial courts


Commons Home A¬airs Committee, with juries or ˜sensible stipendiary mag-
istrates™.79 According to Bar lore the burden of proof was reversed in magis-
trates™ courts where police evidence was too readily believed. The James
Committee had cited defendants™ negative view of ˜magistrates, who inevitably
become “case-hardened” and may be too ready to accept the prosecution case™.80
Later surveys repeated this view.81
The text that follows draws heavily on Dr Darbyshire™s writings. It draws also
on a report commissioned jointly by the Lord Chancellor™s Department and the
Home O¬ce by Rod Morgan and Neil Russell82 and on Lord Justice Auld™s
Review of the Criminal Courts, 2001.83
Selection process Magistrates have always been appointed by the Lord
Chancellor and that remains the position under the new arrangements for the
appointment of judges,84 though the new Judicial Appointments Commission
has the power to advise on the matter.85 The LCD/DCA has had to rely on local
Advisory Committees to nominate suitable appointees and that too will con-
tinue to be the case86 though it does not follow that the existing Advisory
Committees will necessarily continue in being. What follows describes the
system as it has existed up to now.
Not much is known about those processes. In 1995, the Magistrates™
Association, in evidence to the House of Commons Home A¬airs Select
Committee said: ˜the present method of recruitment is shrouded in mystery but,
as far as we can see from the outside, the system is a self-perpetuating oligarchy™.87
That even the Magistrates™ Association should describe the selection process in

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