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such terms speaks for itself. There were some one hundred local Advisory
Committees which nominated potential candidates to the Lord Chancellor. The

79
House of Commons, 52-II, Home Aļ¬€airs Committee, Third Report, Judicial Appointments
Procedures, 1995ā€“96, vol. II, para. 611 (the report is referred to here as the Home Aļ¬€airs
Report).
80
The Distribution of Criminal Business between the Crown Court and Magistratesā€™ Courts,
Cmnd. 6323, 1975, p. 18, para. 36.
81
Darbyshire cited A.E. Bottoms and J. McLean, Defendants in the Criminal Process, 1976, p. 89;
D. Riley and J. Vennard, Triable-either-way-cases: Crown Court or Magistratesā€™ Court?, 1988,
Home Oļ¬ƒce Research Study No. 98; C. Hedderman and D. Moxon, Magistratesā€™ Court or
Crown Court? Mode of Trial Decisions and Sentencing, 1992, Home Oļ¬ƒce Research Study No.
125; J. Vennard in Contested Trials in Magistratesā€™ Courts, 1982, Home Oļ¬ƒce Research Study
No. 71, pp. 2ā€“3.
82
Morgan and Russell, The judiciary in the magistratesā€™ courts, 2000. Accessible at
www.homeoļ¬ƒce.gov.uk/rds/pdfs/occ-judiciary-pdf.
83
See also A. Sanders, Community Justice: Modernising the Magistracy in England and Wales,
84
2001, IPPR. Courts Act 2003, s. 10.
85
The Ministerial Statement made by the Lord Chancellor on 23 January 2006 said that the
Judicial Appointments Commission would not assume responsibility for advising on the
appointment of magistrates ā€˜until it indicates that it is ready to do soā€™. Until such time the
existing system would continue.
86
The Constitutional Reform Act 2005, s. 106 provides that the Lord Chancellor must ensure
that arrangements for the appointment of lay justices ā€˜include arrangements for consulting
persons appearing to him to have special knowledge of matters relevant to the exercise of
87
those functionsā€™. Home Aļ¬€airs Report, n. 79 above at para. 241.
23 The trial courts ā€“ work and organisation


names of the Secretary to the Advisory Committees were available ā€“ they are even
given on the Departmentā€™s Website ā€“ but the names of committee members were
not easily available. (Two-thirds of the members are magistrates.)
The chairmen of Advisory Committees and of sub-committees are appointed
by the Lord Chancellor ā€“ usually on the advice of the outgoing chairmen!88 (The
chairman of the local bench is not permitted to sit as a member of the local
Advisory Committee.) Local Advisory Committees are left to determine their
own ways of recruiting new magistrates. Both the Advisory Committee and the
bench they are responsible for selecting are supposed broadly to reļ¬‚ect the local
community in terms of gender, ethnic origin, geographical spread, occupation
and, until now, political aļ¬ƒliation, but the Committee is left to obtain its own
information in that regard. In his report Lord Justice Auld commented that
without reliable information the Committees are not equipped to fulļ¬l this
responsibility.89
Serving magistrates are recruited in diļ¬€erent ways ā€“ nomination by local
organisations, advertisements, being invited by existing committee members and
in recent years by a variety of other outreach eļ¬€orts. Darbyshire noted: ā€˜many
magistrates are councillors and many have multiple membership of other local
organisations such as health authorities or trusts or school governing bodiesā€™.90
In some areas the Freemasons seemed to have disproportionate numbers.
Darbyshire urged that advertising be undertaken by the Department on a
national basis emphasising that anyone can apply. This suggestion was
adopted.91 Auld said that many local Advisory Committees ā€˜largely rely on the
network, and overlapping membership of local bodies, with the result that there
is an undue draw towards the local ā€œgreat and goodā€ ā€™.92 He contrasted the
money devoted to attract members of the public to become magistrates
(Ā£35,000) to that devoted to attract them to serve in the Territorial Army (Ā£4.7
million).93 He said he was concerned at the low level of ļ¬nancial assistance given
to local Advisory Committees. He endorsed criticism of the LCD made by
Morgan and Russell as to its failure to maintain a proper database as to the com-
position of the magistracy using the same classiļ¬cation as the national census.94
The Department acted on this suggestion.95

88
Statement of Lord Mackay of Clashfern in evidence to the Home Aļ¬€airs Committee, Home
Aļ¬€airs Report, n. 79 above, para. 504. 89 Auld, p. 122, para. 68.
90
Criminal Law Review, 1997 at p. 867.
91
In 2004 the DCA started a major national recruitment campaign to attract more magistrates of
diverse backgrounds. The aim was over three years to increase the number of new
appointments from 1,500 per year to 2,500. Advertisements were placed in many quarters.
They even appeared on the side of buses. It will be of interest to discover what diļ¬€erence such a
92
campaign makes to either the number or the type of candidates. Auld, p. 121, para. 66.
93
Auld, p. 122, para. 67. The national advertising campaign referred to in n. 91 above had a
94
budget of Ā£3.3 million. Auld, p. 122, para. 69.
95
See the National Strategy for the Recruitment of Lay Magistrates issued by the DCA in October
2003 ā€“ www.dca.gov.uk ā€“ Magistrates ā€“ Appointment Procedures. For a sceptical assessment
see G. Robson, ā€˜Diversifying the Magistracy: Plain Sailing or Rocks Ahead?ā€™, 167 Justice of the
Peace, 2003, pp. 906ā€“9.
24 The organisation of trial courts


Also, as from 1999, an explanation of how to become a magistrate, the duties
of magistrates and other relevant information, including the application form
and notes for guidance, have been on the Departmentā€™s Website.
The Department now issues a lengthy (150 or so pages) document (accessi-
ble on the DCAā€™s Website) advising Advisory Committees on the processes of
selection. It covers functions, organisation and composition, appointments,
sources of candidates, interviewing, ancillary matters and conduct.

Composition of the bench
On composition of the bench, Darbyshire wrote: ā€˜lay magistrates are too white,
middle class, Conservative and, I would add, oldā€™.96
Gender There are almost exactly equal numbers of male and female lay
magistrates.97
Age A magistrate can be appointed at any age from eighteen98 to sixty-ļ¬ve.
The retirement age is seventy. Darbyshire reported that her observations sug-
gested that sitting magistrates were skewed towards the retired. DCA ļ¬gures
published in 2003 showed that just over a third (35 per cent) were between sixty
and seventy, 45 per cent were between ļ¬fty and sixty, 16 per cent were between
forty and forty-nine and 4 per cent were under forty.99 The DCA has recently
made considerable eļ¬€orts to attract more young people.100
Ethnic minority representation Morgan and Russell wrote, ā€˜the composition
of the lay magistracy is now approaching ethnic representativeness, that is 2 per
cent black, 2 per cent of Indian sub-continent or Asian origin and 1 per cent
otherā€™ ā€“ as against a national picture of 94 per cent white, 2 per cent black, 3 per
cent Indian sub-continent or Asian origin and 1 per cent other.101 Strong eļ¬€orts
are being made by the DCA to increase representation of the ethnic minorities
on the magistratesā€™ bench.
Social class mix It has been accepted for decades that there are insuļ¬ƒcient
numbers of ā€˜working classā€™ magistrates, despite strenuous eļ¬€orts by successive
Lord Chancellors to increase the proportion. One factor may be that magistrates
are not paid, though they can claim travel expenses (including a per mile bicycle
allowance!), a subsistence allowance and a modest ļ¬nancial loss allowance, on
proof of actual loss. Another factor no doubt is the attitude of employers ā€“ and


96
Darbyshire, Criminal Law Review, 1997, p. 863.
97
As at April 2005, 14,519 were men and 14,346 were women, Judicial Statistics, 2005,
p. 138.
98
The minimum age was reduced in 2004 from 27 to 18.
99
Home Aļ¬€airs Report, n. 79 above, Appendix D.
100
In September 2005 there was considerable publicity on the appointment to the North Sussex
bench of Anand Limbachia, described as a 19-year-old Asian civil servant. In September 2006
similar publicity attended the appointment of 19-year-old law student Lucy Tate to the bench
in Pontefract. The Guardian (11 September) reported that one of her fellow JPs in Pontefract
described the appointment as ā€˜an absolute follyā€™.
101
Morgan and Russell, p. 14. This assumed that the 11 per cent of magistrates whose ethnic
identity is recorded as unknown are all white.
25 The trial courts ā€“ work and organisation


fellow employees.102 Another may be the somewhat demanding requirements of
the job. Thus for instance the ā€˜understanding and communicationā€™ requirement
is described as follows: ā€˜ability to understand documents, identify and compre-
hend relevant facts, and follow evidence and arguments ā€“ ability to concentrate
ā€“ ability to communicate eļ¬€ectivelyā€™. One factor is likely to be that most working
class people probably do not relate to the idea of being a magistrate. An impor-
tant factor may be the ā€˜old boy networkā€™ of the selection process.
There have been a number of studies of the social class composition of the
magistracy.103 One by Dignan and Wynne is especially useful as they compared
their data with those of previous surveys.104 The proportion of wage earners had
risen from 15 per cent of male magistrates in 1947 to 26 per cent in 1989ā€“90.
Although an increase, this did ā€˜nothing to dispel the overall picture of a magis-
tracy that is still drawn from the middle classesā€™.105 The rateable value of their
houses showed equally ā€˜that magistrates in Whitechurch tend to be drawn from
the more aļ¬„uent sectors of the communities they reside in, irrespective of the
overall prosperity of those communitiesā€™.106
Morgan and Russell sent questionnaires to 1,916 lay magistrates in the ten
courts selected for their study. Just under three-ļ¬fths (58 per cent) replied. Of
these, 69 per cent gave as their current or former occupation a professional or
managerial position, 12 per cent said they had a clerical or other non-manual
jobs, 3 per cent were skilled manual workers and 5 per cent said they were
unemployed. As many as two-ļ¬fths (40 per cent) said they were retired.107
Possibly also relevant was the fact that 86 per cent of those responding said they
did not claim loss of earnings and almost a quarter (23 per cent) said they
seldom or never claimed expenses.
Political balance Politics is supposed to play no part in the appointment of
judges but for many years it has been oļ¬ƒcial policy that attention be given to
the political balance on the magistratesā€™ bench. The policy developed from the
report of two Royal Commissions (1909ā€“10 and 1946ā€“48) both of which sug-
gested that the Conservative Party was over-represented on the bench and that
it was important to have a broader mix. The directions to Advisory Committees
stated that the bench should reļ¬‚ect the political balance of the local electorate
as judged from the result of the last two general elections. Nominees were asked
to state their political aļ¬ƒliation, though not all did so. Nominating committees
were asked to state the current balance of the parties on the bench and in the
local electorate.

102
Lord Falconer, the Lord Chancellor, said in 2004 that the Government planned to introduce
legislation to encourage employers to give employees time oļ¬€ to serve on the bench similar to
s. 47 of the Employment Act 2002 which deals with variations in employment contracts to
provide ļ¬‚exible working hours for parents of children under six or who have disabilities.
103
See, for instance, J. Baldwin, ā€˜The Social Composition of the Magistracyā€™, 16 British Journal of
Criminology, 1976, p. 171.
104
J. Dignan and A. Wynne, ā€˜A Microcosm of the Local Communityā€™, 37 British Journal of
Criminology, 1997, pp. 170ā€“93. Though published in 1997 it was based on 1989ā€“90 data.
105 106 107
Ibid at p. 188. Ibid at p. 189. Morgan and Russell at p. 16.
26 The organisation of trial courts


It is likely however that in many, if not most, cases the actual distribution of
political allegiances was not ā€˜balancedā€™ as recommended in the directions. In the
study by Dignan and Wynne (above), for instance, ā€˜there was a marked contrast
between the declared voting intentions of the Whitechurch bench and the
pattern of voting in local council elections at the timeā€™.108
In October 1998 the LCD issued a consultation paper (Political Balance in the
Lay Magistracy) raising the question whether the attempt to achieve a political
balance on the bench should be scrapped in favour of a new system that would
attempt to achieve a balanced bench on the basis of a broader range of socio-
economic factors. The responses were inconclusive with about half in favour of
the existing system and half in favour of a broader approach. Lord Justice Auld
said that the outcome of this consultation exercise was that the Lord Chancellor
concluded ā€˜though reluctantly, that for the time being the requirement for polit-
ical balance should remain, but that work should continue on searching for a
more appropriate measure of social balance, possibly using occupational group-
ings, either alone or with social groupings based on National Statistics classiļ¬-
cationā€™.109 In Auldā€™s view that was the right approach. The only basis for the
political balance to be used was that it was regarded ā€˜as a crude proxy for occu-
pational and/or social groupingsā€™.110 Political views, he said, ā€˜balanced or other-
wise, are hardly relevant to the fairness or ability of a tribunalā€™.111
This view was given eļ¬€ect in 2003 when it was announced that the political
aļ¬ƒliation test would be taken out of the application form.112
Auld said there were various options for making the magistracy more repre-
sentative.113 One was to make the role and terms of service more manageable
for a wider range of persons; another would be short term conscription like jury
service; a third was co-option of citizens on a rotating basis ā€“ serving a speci-
ļ¬ed number of times per year; a fourth was election. He thought that only the
ļ¬rst was worthy of serious consideration. The only concrete suggestion he made
in that regard was reviewing the sitting arrangements. (ā€˜There may be scope for
magistrates to sit more or less often, for longer or shorter periods at a time and
more ļ¬‚exibly, according to their individual circumstances. This might increase
the pool of candidates for appointmentā€™.114). One has to say that it is diļ¬ƒcult to
believe that changes in sitting arrangements of that kind would have much
impact.
In October 2003, the DCA launched a National Recruitment Strategy aimed
at achieving a more diverse magistracy. One of the initiatives was a shadowing

108
Dignan and Wynne, n. 104 above. While the area returned a large majority of Labour
councillors only just over a quarter of magistrates said they intended to vote Labour.
Conversely, while almost half the magistrates identiļ¬ed with the Conservatives, the party had
only 16 per cent of local council seats at the time (p. 191). No fewer than twenty-seven of the
seventy wards in the division had no magistrates living in them, while ļ¬ve wards had thirty-
three magistrates ā€“ almost a third of the total number (p. 192).
109 110 111
Auld, p. 128, para. 85. Ibid. Ibid.
112 113
DCA Press Release, 6 November 2003. Auld, p. 123, para. 72.
114
Auld, p. 124, para. 73.
27 The trial courts ā€“ work and organisation


scheme whereby people from black neighbourhoods are given the opportunity
of seeing what magistrates do, but the evaluation report on the ļ¬rst phase of this
scheme said: ā€˜shadowers were in the main already engaged in community activ-
ities and were well respected and trusted members of their communitiesā€™. In
other words, it seemed that they were the kind of people who were already likely
to come forward as potential magistrates.115
Training The LCD told the House of Commons Home Aļ¬€airs Committee
that until 1989 ā€˜training was negligible. It was really a matter of learning by
experienceā€™.116 There was a brief induction course, followed by some basic train-
ing in the ļ¬rst year and further basic training in the second and third year. The
training consisted of courses following a syllabus. There was no evaluation or
assessment process.
In 1998 a new system of training was started based on competences ā€“ a com-
bination of skills, knowledge and attributes. It considers not just knowledge of
law and procedure but such topics as reaching impartial decisions (e.g. ā€˜oneā€™s
own conditioning and personal prejudices, labelling and stereotyping, language
and cultural diļ¬€erences and body languageā€™) and eļ¬€ective participation on the
bench (e.g. ensuring equality of treatment to all court users, ensuring that
witnesses are not bullied, note-taking, observing people/conduct, contributing
to a structured decision-making process, challenging discriminatory views,
helping to identify the issues etc.). New magistrates are assigned experienced
magistrates as mentors. Competences are assessed through appraisal. The
appraisal system applies not only for new magistrates. Existing magistrates are
also appraised, in principle, every three years ā€“ though benches are allowed up
to ļ¬ve years for the ļ¬rst appraisal. There is now also training and appraisal for
chairmen of benches. The required competences depend on the work that each
magistrate is actually doing.
Reviewing the new training system, Auld117 said that it had been much criti-
cised for its complexity ā€“ ā€˜for example there are 104 ā€œcompetencesā€ even for
those who sit only as ā€œa wingerā€ ā€™.118 Two years after the introduction of the
scheme no national standards had been set with regard to competences. The
Judicial Studies Board had issued an evaluation of the new system119 in which it
concluded that although the basic concepts were sound there was too great a
variation in the manner of its implementation. It recommended the introduc-
tion of national performance standards, the weighting of consequences and
simpliļ¬cation of documents. Auld added that the lack of consistency as between
areas applied to all the training of magistrates. This was a matter of legitimate
concern ā€˜particularly in its contribution to wide variations in the eļ¬€ectiveness

115
G. Robson, ā€˜Diversifying the Magistracy: Plain Sailing or Rocks Ahead?ā€™ 167 Justice of the
116
Peace, 29 November 2003, pp. 906ā€“9. The Home Aļ¬€airs Report, n. 79 above at p. 151.
117
Auld, pp. 131ā€“32, para. 92.
118
The bench normally consists of the chairman and two ā€˜wingersā€™.
119
Magistrates New Training Initiative: Evaluation of Implementation, Final Report (December
2000).
28 The organisation of trial courts


of case management and in sentencing patternsā€™.120 In his view there was ā€˜an
urgent need for clearer and simpler national standards in the training of mag-
istrates and for more consistency in and monitoring of its provisionsā€™.121 The
Judicial Studies Board, he said, should be made responsible for devising and
securing the content and manner of training of magistrates.
In June 2004 the Judicial Studies Board published proposals regarding the
training of magistrates.122 In November 2004 the DCA published its proposals
for new rules for the training of magistrates.123 The new rules124 were intro-
duced as from 1 April 2005. They provide, inter alia, that a magistrate may not
sit either as chairman or member of the adult court, the family proceedings
court or the youth court until he has completed the relevant approved train-
ing.125
However whilst more training for lay justices increases their professionalisim
there is a view that it may not be wholly desirable. This view was expressed by
Mark Davies of Sussex Law School in his article ā€˜A new training initiative for the
lay magistracy in England and Wales ā€“ a further step towards professionalisa-
tionā€™.126 His point was that part of the value of the lay magistracy is that it is ā€˜layā€™
which was threatened by greater training. There was a dilemma:
On the one hand, an increasingly skilled and knowledgeable magistracy is better
able to meet the demands of a complex judicial system. On the other hand, the
very attributes which are celebrated strengths of the magistracy, for example,
impartiality (including an impartial attitude to the legal system); the ability to
approach cases free of the ingrained presumptions which come with the profes-
sional socialisation of lawyers; and generally, the freedom and variety of thought
which comes with a judicial body drawn from a far wider cross section of the com-
munity than salaried judges drawn only from the ranks of lawyers . . . [The] idea
that the role of magistrates is an embodiment of society in the legal process ā€“ a
direct democratisation of that process ā€“ requires magistrates to be amateurs who
lack training and expertise. This very lack of expertise is essential if the commu-
nity is to be protected from the dominance and abuse of power by experts such as
lawyers. The essential role of the magistrate, therefore, is to bring common sense
and knowledge of the locality and the local community to the criminal justice
process . . . It is therefore open to question whether developments in the training
and appraisal of lay magistrates, and the development of other characteristics
which ļ¬t models of professionalism, are desirable. This is the ā€œparadox of train-
ingā€ a lay body. This in turn leads to the distinction between ā€œlegal justiceā€ ā€“ the
application of pre-determined rules by trained professionals ā€“ and ā€œcommunity


120 121
Auld, p. 132, para. 96. Ibid.
122
Proposals for the Organisation and Management of Magisterial Training in the Uniļ¬ed Courts
Administration, 28 June 2004.
123
Proposals for New Rules for Training, Development and Appraisal, 17 November 2004.
124
Justice of the Peace (Training and Appraisal) Rules 2005, SI 2005/564.
125
For a description and discussion of the new system see G. Robson, ā€˜Changing the Culture of
the Lower Courtsā€™, 169 Justice of the Peace, 22 January 2005, pp. 53ā€“6.
126
12 International Journal of the Legal Profession, March 2005, pp. 93ā€“119.
29 The trial courts ā€“ work and organisation


justiceā€ ā€“ justice which reļ¬‚ects the values of the community it serves. The English
and Welsh criminal justice system is a hybrid of the two types. The strong pres-
ence of lay participants reļ¬‚ects a long commitment to community justice, albeit
recognising that this operates within a legal framework. The increased training,
and therefore professionalisation of the lay magistracy, risks removing this com-
munity element from the majority of criminal cases.127

The balance between lay and professional magistrates
In 1998, the LCD issued a consultation paper (Uniļ¬cation of the Stipendiary
Bench) as to whether there should be a single national judicial corps of stipen-
diary magistrates. The professional magistrates get through cases at a consider-
ably greater rate than lay justices. (The CP suggested that, according to research,
a single stipendiary did the work of about thirty lay justices in the provinces and
of twenty-three in London.128)
Morgan and Russellā€™s report was a comparison between lay and stipendiary
magistrates. It conļ¬rmed that stipendiaries dealt with their work more quickly.
They knew the law and therefore did not need to consult their legal adviser.
They sat alone and therefore did not need to consult colleagues. They therefore
withdrew less often and for shorter periods, but they also asked more questions
than lay magistrates. They granted fewer adjournments. They were less likely
than lay justices to grant bail over police objections (19 per cent compared to
37 per cent) and more likely to give defendants immediate custodial sentences
(25 per cent compared to 12 per cent).129 The ļ¬nding that stipendiaries are more
severe in sentencing conļ¬rmed earlier research:130
ā€¢ If only direct costs were considered, Morgan and Russell said, lay justices were
much cheaper as they were not paid and many did not claim loss of earnings
or even travel expenses (Ā£3.59 per appearance against Ā£20.96). However,
when the cost of buildings and court administration were included the gap
obviously narrowed (Ā£52.10 against Ā£61.78).
ā€¢ The study found that in London, where there are a large number of stipendi-
aries, they did the full range of magistratesā€™ courts work. Outside London
their caseload was more slanted toward ā€˜heavy businessā€™.131
ā€¢ A nationally representative sample of 1,753 members of the public was
interviewed as to their views on and knowledge of the magistracy.132 Most
had heard of magistrates and magistratesā€™ courts but only a minority had
heard of lay as opposed to stipendiary magistrates. When the diļ¬€erence
between them was explained, almost three-quarters (73 per cent) said they
were not aware of the diļ¬€erence. When comparing single magistrates with


127 128 129
Ibid, pp. 112ā€“13. At para. 33. Note 82 above at pp. 26ā€“7.
130
See S.S. Diamond, ā€˜Revising Images of Public Punitiveness: Sentencing by Lay and
Professional English Magistratesā€™, 15 Law and Social Inquiry, 1990, pp. 191ā€“221 and ā€˜The
Assessment of Sentencing Choice through Triangulation: A Reply to Walkerā€™, 17 Law and
131 132
Social Inquiry, 1990, pp. 115ā€“22. Note 82 above at pp. 26ā€“7. Ibid, Ch. 5.
30 The organisation of trial courts


panels, a large majority thought that the more serious decisions of guilty/
not guilty (74 per cent) and imprisonment (76 per cent) should be taken by
panels.
The establishment in 1999 of Lord Justice Auldā€™s Review of the Criminal Courts
raised expectations in some quarters that he would recommend a change in the
overall balance between lay and professional magistrates ā€“ and possibly even
abolition of the lay bench ā€“ but he did not do so. (ā€˜Nor can I see any basis for
recommending any signiļ¬cant change in their respective numbersā€™.133)
Lord Justice Auld also rejected the suggestion that lay and professional mag-
istrates sit together in a hybrid magistratesā€™ court. (ā€˜The overwhelming evidence
in the Review is that they each do a good job in their separate ways. And neither
magistrates nor District Judges would welcome such a general transformation
and diminution of their respective rolesā€™.134) However, somewhat inconsis-
tently, he did recommend that a new intermediate criminal court (District
Division) be set up consisting of a professional judge and two lay magistrates
(on which see pp. 39ā€“40 below).
In June 2005, the House of Commons Public Accounts Committee recom-
mended that the DCA should consider whether the use of stipendiary magis-
trates led to better management of the trial process,135 obviously unaware of the
fact that stipendiary magistrates no longer existed having several years earlier
become District Judges (Magistratesā€™ Courts).
There is no sign that the DCA plans any signiļ¬cant change in the balance
between the lay and the professional bench.136

Extent of summary jurisdiction
Auld also rejected suggestions for either a general increase or decrease in
summary jurisdiction. (ā€˜I can discern no wide or well-based support for a
change in the general limit of six monthsā€™ custody or Ā£5,000 ļ¬ne now applica-
ble to District Judges and magistrates alikeā€™.137) He acknowledged that their
sentencing powers were greater than those given to lay tribunals in other coun-
tries but, in his view, ā€˜they are increasingly well trained for their task and have
their legal advisers to assist them, where necessary, on points of law or proce-
dureā€™(ibid). There were remarkably few appeals from their decisions.
As will be seen (p. 321 below), the Government disagreed. Hoping to reduce
the proportion of cases committed for sentence to the Crown Court it included
a provision in the Criminal Justice Act 2003 to extend magistratesā€™ sentencing
power from six monthsā€™ to twelve monthsā€™ imprisonment (s. 154). This power
was supposed to be implemented in October 2006 ā€“ but this did not happen and
it was not clear when (if at all) it would be implemented.

133 134
Auld, p. 111, para. 2. Auld, p. 109, para. 40.
135
Recommendation 5 of the 22nd Report of the Committee, Session 2004ā€“05, 16 June 2005.
136
See G. Robson, ā€˜Never Oļ¬€ the Agenda: The Issue of the Lay Magistracyā€™, 169 Justice of the
137
Peace, 6 August 2005, pp. 611ā€“14. Auld, p. 101, para. 20.
31 The trial courts ā€“ work and organisation


Justicesā€™ chief executives, justicesā€™ clerks and court clerks
The justicesā€™ clerk used to be the person responsible both for the administration
of the magistratesā€™ court and for advising the bench. Their duties included
keeping the accounts, handling the collection of ļ¬nes and other enforcement
procedures, running the licensing sessions, training the justices and listing of
cases. In large court complexes the justicesā€™ clerk was so busy with administra-
tive duties that he rarely sat in court. Some justicesā€™ clerks would have one or
two benches; some had a large number.138
In 1994 the Police and Magistratesā€™ Courts Act established the post of justicesā€™
chief executive to act as the single head of service for each Magistratesā€™ Courts
Committee (MCC). Each MCC was required to appoint a chief executive to
manage the courts in its area. As a result there was a drastic reduction in the
number of posts. In 1989 there were 275 full-time justicesā€™ clerks. By 2006, there
were only seventy.
Justicesā€™ clerks continued to be responsible for many administrative matters.
The Justices of the Peace Act 1997 separated the legal and administrative func-
tions of the job. The Access to Justice Act 1999, s. 87 took this process further
in providing that the chief executive need not be someone qualiļ¬ed to be a jus-
ticesā€™ clerk. The policy was that justicesā€™ clerks should concentrate on their legal
and judicial functions which were rapidly expanding.139
The Courts Act 2003 was an even more radical step. Instead of the justicesā€™
clerks being appointed as before locally by MCCs they are now appointed by the
Lord Chancellor (s. 27). MCCs were abolished and the new system was cen-
tralised as recommended by Lord Justice Auld. The 2003 Act (s. 29) guarantees
the independence of justicesā€™ clerks with regard to judicial and quasi-judicial
functions. (When the Bill was going through Parliament fears were expressed
that making justicesā€™ clerk appointees of the executive could put them under
improper pressure.140)
A consultation paper issued by the DCA in May 2006 (A Model for the Provision
of Justicesā€™ Clerks in England and Wales)141 made it clear that the local connection
between the magistratesā€™ courts and their justicesā€™ clerk was likely to become
increasingly tenuous as the range of their territorial responsibility was enlarged.142
The court clerk ā€“ qualiļ¬cations Each magistratesā€™ court when sitting is
supposed to be served by a court clerk. Ideally the court clerk should be a qual-
iļ¬ed lawyer but many are not. A consultation paper issued by the LCD in 1998
(The Professionalisation of Court Clerks) said that some 40 per cent of the 1,500

138
Darbyshire stated that when in 1997 the Kent Magistratesā€™ Courts Committee amalgamated
the whole county under one clerkship the clerk would be serving fourteen benches with 800
justices (Criminal Law Review, n. 77 above at p. 873).
139
The Access to Justice Act 1999, s. 91 for instance transferred responsibility for ļ¬nes and fees
accounts to the justicesā€™ chief executive.
140
N. Hanson, ā€˜Clerks seek justiceā€™, Law Societyā€™s Gazette, 17 June 2004, pp.18ā€“20.
141
CP (L) 08/06, 10 May 2006 ā€“ www.dca.gov.uk ā€“ Publications ā€“ Consultation papers.
142
For critical commentary on the thrust of the consultation paper see G. Robson, ā€˜A Long
Farewellā€™, 170 Justice of the Peace, 22 July 2006, pp. 548ā€“51.
32 The organisation of trial courts


or so court clerks in magistratesā€™ courts were not so qualiļ¬ed. Since 1980, all
courts clerks should have at least a Diploma in Magisterial Law, though not all
in fact satisfy that test. Darbyshire wrote: ā€˜diploma students and part-time dis-
tance learners may be authorised to be a clerk on completion of just one year of
the courseā€™.143 The LCDā€™s 1998 consultation paper invited views on a proposal
that all court clerks should be professionally qualiļ¬ed as barristers or solicitors.
It presented two broad options. One was that from a given date only persons
qualiļ¬ed as barristers or solicitors would be eligible to take courts. The second
was that this would only apply to new entrants as from that date.
The Government initially decided that court clerks appointed after January
1999 would have to be fully qualiļ¬ed and that existing clerks would have to
become so qualiļ¬ed within ten years. Subsequently, the Government retreated
slightly in the face of criticism and announced that this new rule would not
apply to serving clerks aged forty or over.144
Auld said that in March 2001 there were some 1,800 legal advisers, two-thirds
of whom were qualiļ¬ed. He warmly approved of the increasing professionalism
of the court clerks but he recommended that District judges, being themselves
professionally qualiļ¬ed, should normally sit without a legal adviser.145
The clerk and the bench The function of the court clerk vis-Ć -vis the bench
has undergone important changes. Basically the function is to guide the justices
on matters of law and procedure.
In the 1950s it was laid down that the clerk must be, and be seen to be, sub-
servient to the bench and that although the clerk could, for instance, retire with
the bench when they went to consider their decision, he should do so only on
invitation and should emerge before the justices.146 In recent years the crucial
role played by the clerk has increasingly been recognised and the courts have
now changed their emphasis when dealing with the delicate balance of power
between the clerk and the bench.
The next Practice Direction was issued in July 1981.147 It said that ā€˜if it appears
to him to be necessaryā€™ (emphasis supplied) or ā€˜he is so requested by the justicesā€™,
the clerk had the responsibility to ā€˜refresh the justicesā€™ memory as to any matter
of evidence and to draw attention to any issues involved in the matters before
the courtā€™ as well as advising on the penalties available and giving guidance as
to the choice of penalties. The clerk could advise the justices in their retiring
room, though if they wished to consult him about the evidence they should nor-
mally do so in open court.

143
Darbyshire, Criminal Law Review, 1997, p. 872. Under the Justices Clerks (Qualiļ¬cation of
Assistants) Rules 1979 a person can serve as a court clerk if he has passed a preliminary
professional examination and has served for two years or, in the case of clerks who had served
for ļ¬ve years before 1980, if he has a ā€˜certiļ¬cate of competenceā€™ from the magistratesā€™ court
committee.
144
Press statement by Mr Geoļ¬€ Hoon, MP, Minister of State LCD, 12 November 1998.
145
Auld, p. 117, para. 53. On recruitment diļ¬ƒculties in getting court clerks see 153 New Law
146
Journal, 5 September 2003, p. 1297. Practice Direction [1953] 2 All ER 1306.
147
[1981] 2 All ER 831.
33 The trial courts ā€“ work and organisation


It was argued that advice on law from the clerk should always be given in open
court.148 This view was implemented in the Practice Direction issued on 2
October 2000, the day the Human Rights Act came into force:149
8. At any time, justices are entitled to receive advice to assist them in discharging
their responsibilities. If they are in any doubt as to the evidence which has been
given, they should seek the aid of their legal adviser, referring to his/her notes as
appropriate. This should ordinarily be done in open court. Where the justices
request their adviser to join them in the retiring room, this request should be
made in the presence of the parties in court. Any legal advice given to the justices
other than in open court should be clearly stated to be provisional and the
adviser should subsequently repeat the substance of the advice in open court and
give the parties an opportunity to make any representations they wish on that
provisional advice. The legal adviser should then state in open court whether the
provisional advice is conļ¬rmed or, if it is varied, the nature of the variation.
In recent years the trend has been to give more and more responsibility to the
clerk and especially the clerk to the justices. The ļ¬rst step in that direction was
taken in the Justicesā€™ Clerks Rules of 1970, which allowed clerks to hear appli-
cations for summonses and warrants, to grant adjournments, renew bail, issue
witness orders, take pleas, order a means inquiry and vary the payment of a ļ¬ne.
It has been suggested that court clerks should be allowed to rule formally on
the admissibility of evidence and to sum up points for the justices. They would
then be acting very much like the judge with a jury. One strong argument for
such a development is that it would make the administration of justice more
open. The parties would be able to see on what basis the case was being
approached and what law was being applied.
In February 1997, the Narey Report150 proposed that justicesā€™ clerks should
take over from magistrates many of the functions of court management such
as handling pre-trial reviews or early administrative hearings, extending bail,
varying conditions of bail, ordering defendants to produce their driving
licences etc. The decision as to bail or custody would, however, remain one for
the bench. In its response to the Narey Report the Government said it accepted
in principle that there was a role for clerks to the justices in assisting in case
management. Under rules made by virtue of the Crime and Disorder Act 1998,
ss. 49 and 50, justicesā€™ clerks have the power to perform a variety of tasks rec-
ommended for transfer by Narey.151 (As originally drafted the Crime and
Disorder Bill would have given clerks even wider judicial powers ā€“ including
varying of bail conditions without consent, remanding an accused in custody

148
A. Heaton-Armstrong, ā€˜The Verdict of the Court and its Clerk? Can Justice be Seen to be
Done Behind Closed Doors?ā€™, Justice of the Peace, 31 May 1995, p. 340 and 7 June 1995, p. 357.
149
Practice Direction [2000] 1 WLR 1886, [2000] 4 All ER 895. This is now para. V 55.7 of the
Practice Directions given under the Criminal Procedure Rules 2005.
150
Review of Delay in the Criminal Justice System, 1997. Mr Martin Narey was a senior Home
Oļ¬ƒce oļ¬ƒcial who shortly thereafter became Director-General of the Prison Service.
151
Justicesā€™ Clerks Rules 1999, SI 1999/2784.
34 The organisation of trial courts


for a medical report, making an order for joint or separate trials, determining
mode of trial on an additional charge and prohibiting press publicity, but after
opposition from, inter alia, the Lord Chief Justice and the Magistratesā€™
Association, s. 49(3) was added expressly to prevent those functions being del-
egated to clerks.152)
Lord Justice Auld said that the majority of justicesā€™ clerks were frustrated by
the limitations of their newly-acquired jurisdiction and wanted enhanced
powers. He did not support them. (ā€˜I recommend that there should be no exten-
sion of justicesā€™ clerks case management jurisdictionā€™.153) The Government, so
far at least, seems to have accepted that view.
See further on magistratesā€™ courts: Sir Thomas Skyrme, The Changing Image
of the Magistracy, (Macmillan, 1979) and History of the Justices of the Peace
(1994); P. Carlen, Magistratesā€™ Justice (Martin Robertson, 1976); Elizabeth
Burney, Magistrate, Court and Community (Hutchinson, 1979); P. Darbyshire,
The Magistratesā€™ Clerk (Barry Rose, 1984); S. Brown, Magistrates at Work, 1991.


3. Managing the courts
Lord Justice Auldā€™s review
The criminal justice system currently operates on a budget of some Ā£12
billion and consists of three Government Departments ā€“ the Department
of Constitutional Aļ¬€airs, replacing the Lord Chancellorā€™s Department, the
Home Oļ¬ƒce and the Attorney General ā€“ and a number of separate agencies.
Describing management for the system, Lord Justice Auld said:
The whole ediļ¬ce is structurally ineļ¬ƒcient, ineļ¬€ective and wasteful . . . The basic
problem lies in the shared, but also divided, responsibilities of the three
Government Departments for the system. Each, necessarily, must guard its con-
stitutional independence and, in respect of some of its responsibilities, its func-
tions from the others and have regard to its separate ļ¬nancial accountability to
the Treasury and to Parliament. The Public Accounts Committee, in its 2000
Report, observed: ā€˜the most common constraints to eļ¬€ective local inter-agency
liaison include conļ¬‚icting objectives and priorities, which can prevent agree-
ment . . . Current performance in progressing criminal cases is not satisfactory
and needs to be improved through more concerted joint monitoring and man-
agement of performance across the criminal justice systemā€™.154
Auld continued:
It does not have to be this way. It is axiomatic that overall political accountabil-
ity for investigation, prosecution and adjudication should remain separate, but
beneath that level there needs to be a mechanism for securing some central
direction and joint management of the achievement of shared objectives.155

152
See, generally, P. Darbyshire, ā€˜A Comment on the Powers of Magistratesā€™ Clerksā€™, Criminal Law
153
Review, 1999, pp. 377ā€“86. Auld, p. 119, para. 58.
154 155
Auld, Ch. 8, para. 14, pp. 319ā€“20. Ibid, para. 15, p. 420.
35 Managing the courts


He recommended that a Criminal Justice Board should replace all the existing
national planning and operational bodies, including the Strategic Planning
Group156 and the Trial Issues Group (TIG).157 It should be responsible for plan-
ning and setting criminal justice objectives, budgeting and the allocation of
funds, securing the national and local achievement of its objectives, the devel-
opment of an integrated IT system and research and development. The Board
should be the means by which the Government Departments and agencies
dealing with criminal justice provided overall direction of the criminal justice
system. It should have an independent chairman and should include senior civil
servants from the three main departments and chief executives of the main
criminal justice agencies plus a small number of non-executive members.158
The Governmentā€™s White Paper Justice for All (July 2002, para. 9.5) stated that
a new National Criminal Justice Board would be established to replace the
Strategic Board. It would be chaired by the Permanent Secretary at the Home
Oļ¬ƒce and would include the Permanent Secretary at the Lord Chancellorā€™s
Department, the DPP, the chief executives of the criminal justice agencies, the
president of the Association of Chief Police Oļ¬ƒcers and a senior judge. The
Board would report to the Cabinet Committee, chaired by the Home Secretary
and including the Lord Chancellor and the Attorney General whose function
was to co-ordinate broad policy on criminal justice. The existing tripartite
Criminal Justice Joint Planning Unit would be answerable to the Board and
would establish co-ordinated business plans and priorities. The White Paper
did not mention Auldā€™s recommendation as to the Boardā€™s functions but it was
clear that the Government did not accept that the Board would allocate budgets.
Auld recommended that local Criminal Justice Boards, replacing Area
Strategy Committees and local TIGs, should be responsible for giving eļ¬€ect at
the local level to the national Boardā€™s directions and for management of the
system at their level.159
The 2002 White Paper (para. 9.11) said that the Government would set up
forty-two local Criminal Justice Boards to oversee the new joint working agree-
ments between local agencies in each area. Local Chief Oļ¬ƒcers from the police,
CPS and Probation Service as well as senior representatives of the courts would
provide the core membership. Each local Board would be required to establish

156
This consisted of the Criminal Policy Directors and senior Finance Oļ¬ƒcers of the three
departments, other senior oļ¬ƒcials including a representative of the Treasury and a member of
the Prime Ministerā€™s Policy Unit. It met every six weeks. It made recommendations to the
Ministerial Group chaired by the Home Secretary which included the Lord Chancellor and
the Attorney General. However, according to a recent study by Professor Sue Richards cited by
Auld, the Strategic Planning Group ā€˜is not strategic and it does not planā€™ (Auld, Ch. 8, paras.
22, 25, pp. 322, 323).
157
Established in 1995. It consisted of senior civil servants and oļ¬ƒcials drawn from all the main
criminal justice agencies and organisations. Monthly meetings. A creature of the three
departments. Operated as their planning and co-ordinating agent through sub-groups, pilot
studies, instructions and guidance. Supported by six specialist sub-groups and local TIGs
based on the forty-two criminal justice areas (Auld, Ch. 8, paras. 26ā€“27, pp. 324ā€“25).
158 159
Auld, Ch. 8, paras. 43ā€“72, pp. 330ā€“43. Auld, Ch. 8, paras. 73ā€“77, pp. 343ā€“44.
36 The organisation of trial courts


advisory and consultative machinery involving input from the judiciary, magis-
trates, voluntary groups and members of the community including victims
(para. 9.12). The local Boards would agree annual local delivery contracts with
the National Board and would be responsible and accountable for local delivery
of criminal justice system objectives, improvements in the delivery of justice, the
service provided to victims and witnesses and in securing public conļ¬dence.
Auld said that the existing Criminal Justice Consultative Committee was ā€˜ill-
equipped to undertake the wide-ranging and comprehensive consultative and
advisory role that the Government needsā€™.160 It should be replaced by a strength-
ened Criminal Justice Council chaired by the Lord Chief Justice and with a
proper secretariat and research staļ¬€ to keep the whole system under review and
to advise the Government.161
The White Paper (para. 9.7) stated that the Criminal Justice Consultative
Council would be replaced by a new Criminal Justice Council with membership
from the Commission for Racial Equality, the Law Society, victim and witness
organisations and academics, as well as the core membership of the judiciary,
the Bar and the magistracy. There was no mention of the secretariat or research
capacity.
Auld recommended that the Crown Court and the magistratesā€™ courts should
be replaced by a uniļ¬ed Criminal Court.162 The Government rejected this rec-
ommendation. The White Paper (para. 4.6) said that the beneļ¬ts Auld saw
ļ¬‚owing from uniļ¬cation could be realised through ā€˜a closer alignment of the
magistratesā€™ courts and the Crown Court, without a complete re-ordering of the
court system and without adversely aļ¬€ecting the civil and family jurisdictionsā€™.
The Government would legislate to bring the two courts closer together. They
would be known as ā€˜the criminal courtsā€™.
With regard to the forty-two MCCs and the Greater London Magistratesā€™
Courts Authority, the White Paper (para. 9.16) said that Lord Justice Auld had
found their ā€˜diļ¬€erences in practices, procedures, management and culture to be
confusing, divisive and ineļ¬ƒcientā€™. Organisational boundaries between the
diļ¬€erent court services in each area formed an institutional barrier to the
eļ¬€ective management of the courts. There were wide variations in their perfor-
mance. The Government accepted Auldā€™s recommendation of a new agency to
replace the Courts Service. (ā€˜The aim of the new agency will be to enable man-
agement decisions to be taken locally by community focused local management
boards, but within a strong national framework of standards and strategy direc-
tion . . . In an integrated system, local managers will have much greater freedom
to balance workloads across the civil, criminal and family jurisdictions . . .
Uniļ¬cation will also make it simpler to transfer cases from magistratesā€™ courts
to the Crown Court and easier for the courts to engage directly with other crim-
inal justice agenciesā€™.163)

160 161
Ibid, para. 79, p. 347. Ibid, paras. 78ā€“88, pp. 346ā€“51.
162 163
Auld, Ch. 7, paras. 2ā€“15, pp. 270ā€“73. White Paper, Justice for All, paras. 9.17, 9.20.
37 Managing the courts


At the same time the White Paper said that management of the courts needed
to reļ¬‚ect local considerations. (ā€˜The new structure will need to ensure suļ¬ƒcient
local ļ¬‚exibility and devolved decision-making about management issues of
importance to the local areaā€™.164)
There also needed to be greater accountability to the local community. MCCs
largely consisted of magistrates appointed by magistrates. (ā€˜There is no require-
ment for court users, the local community or local authorities to be consulted
about key management decisionsā€™.165) The Government said that it would
expect managers of courts to be accountable to new local management boards
which would include representatives drawn for example from the judiciary, the
magistracy, local court user groups, victim support groups, local authorities
and the local community.166
However local ļ¬‚exibility could not be used to excuse wide variations in
performance. (ā€˜Local services will need to satisfy clear national standards in
performance, ļ¬nancial reporting and meeting national policy aimsā€™.167) The
chief executive of the new agency would be accountable to Ministers and
Parliament for national functions including setting and monitoring standards
across the courts, stepping in to take action when an area was under-perform-
ing and managing major programmes and projects like IT.168
As noted above, the new uniļ¬ed courts system run by HM Courts Service
(HMCS) was established as from 3 April 2005.
Auld recommended that a Joint Inspection Unit should be established under
the collective control of the six Criminal Justice Chief Inspectors: of the Crown
Prosecution Service, of the Constabulary, of Prisons, of Probation, of the
Magistratesā€™ Court Service and of Social Services. The Magistratesā€™ Courts
Inspectorate should be superseded by an Inspectorate for the uniļ¬ed Criminal
Court.169
The Government accepted both these recommendations. On joint inspec-
tions, it said, ā€˜the more the CJS comes to be managed as one overall system, with
consistent measures of performance, the more important it will be that future
inspections are conducted and delivered in a cohesive and consistent mannerā€™
(para. 9.43). But, as will be seen, this did not come to pass.
On inspecting the courts, the White Paper said (para. 9.46): ā€˜We will set up a
new independent inspectorate to look at improving administrative perfor-
mance of the magistratesā€™ courts, the Children and Family Court Advisory
Service and, for the ļ¬rst time, of the Crown Court and county courtsā€™.

The Courts Act 2003
The Courts Act 2003 gave eļ¬€ect to some of these proposals:
ā€¢ Part I (Maintaining the Court System) ā€“ section 1 places a duty on the Lord
Chancellor to provide an eļ¬ƒcient and eļ¬€ective system to support the carrying

164 165 166 167
Ibid, para. 9.22. Ibid, para. 9.23. Ibid, para. 9.24. Ibid, para. 9.25.
168 169
Ibid, para. 9.26. Auld, pp. 351ā€“52.
38 The organisation of trial courts


on of the business of all the main courts in England and Wales, namely the
Court of Appeal, the High Court, the Crown Court, the county courts and the
magistratesā€™ courts. The Act did not set out a blueprint for the new agency.
However the Explanatory Notes accompanying the Act stated: ā€˜this responsi-
bility will be discharged, in practice, by a new executive agency, as part of the
Lord Chancellorā€™s Department, replacing the Courts Service and the forty-two
Magistratesā€™ Courts Committees (MCCs).170 This agency will have local com-
munity links through Court Boardsā€™. The function of the Boards is ā€˜to scruti-
nise, review and make recommendations about the way in which the Lord
Chancellor is discharging his general duty in relation to the courts with which
the Board is concernedā€™ (s. 5(1)).171
The scheme based on forty-two Local Justice Areas which was the basis of
the Courts Act 2003 did not last long. In the consultation paper issued in May
2006 the DCA said:
HMCS [Her Majestyā€™s Court Service] is a national organisation and so former
geographical boundaries should not be a constraint. Further, the advent of
police boundary reform and the impact that this will have on the potential
shape of HMCS means that the forty-two boundaries are of little if any rele-
vance or constraint on the future provision of justicesā€™ clerk posts.172
The paper said that the Government envisaged that there would be twenty-
two HMCS areas.
ā€¢ The oļ¬ƒce of justicesā€™ chief executive was abolished.173
ā€¢ Part 2 (Justices of the Peace) ā€“ largely re-enacted Part II of the Justices of the
Peace Act 1997. The main change was to give lay magistrates a national juris-
diction, though they would be assigned to a local justice area (s. 10).
ā€¢ As already noted, justicesā€™ clerks are now appointed by the Lord Chancellor.
They have to have a ļ¬ve-year magistratesā€™ courts qualiļ¬cation, or be a barris-
ter or solicitor or have previously been a justicesā€™ clerk (s. 27(2)). The Lord
Chancellor is obliged to consult the chairman of the lay justices before assign-
ing a justicesā€™ clerk to a diļ¬€erent area (s. 27(4)). (The Constitutional Reform
Act 2005, Sch. 4, para. 326, added the requirement of consultation also with
the Lord Chief Justice.174) A section in the Courts Act headed ā€˜Independenceā€™
states that when exercising their legal functions justicesā€™ clerks are not subject
to the direction of the Lord Chancellor or any other person and that assistants
are not subject to the direction of anyone other than the justicesā€™ clerk (s. 29).

170
The House of Lords debates on the Bill focused particularly on the issue of centralisation of
powers and the resulting loss of local input regarding the running of magistratesā€™ courts. (For
an article about the Bill by the Minister, published after the completion of the House of Lords
stage, see Baroness Scotland, ā€˜Courts Billā€™, 167 Justice of the Peace, 24 May 2003, p. 384. The
purpose of the article was plainly to persuade magistrates who had expressed considerable
disquiet about the Bill that the Governmentā€™s amendments suļ¬ƒciently met their concerns.)
171
For a sceptical appraisal of the Courts Boards see G. Robson, ā€˜What Next for Local Justice?ā€™,
172
168 Justice of the Peace, 3 April 2004, p. 246. Note 141 above, section 7, para. 3.
173 174
Section 6(2)(b). Schedule 4, para. 326.
39 Managing the courts


ā€¢ Part 5 (Inspectors of Court Administration) ā€“ provides for the establish-
ment of a new inspectorate to be known as Her Majestyā€™s Inspectorate
of Courts Administration to replace the existing Courts Service Inspectorate.
It had the power to inspect all magistratesā€™ courts, county courts and the
Crown Court. However this was rapidly overtaken by events. In March 2005
the Government announced that the public sector inspectorates would be
reduced from eleven to four. In the same month, the DCA, the Home Oļ¬ƒce
and the Attorney General issued a consultation document175 proposing the
amalgamation of the ļ¬ve existing criminal justice inspectorates176 into one. In
November 2005 they issued a Policy Statement under the same title that the
plan would be implemented by legislation. The Police and Justice Bill
2005ā€“06, Part 4 provided for a single inspectorate for Justice, Community
Safety and Custody. Its remit would include the courts system and the crimi-
nal justice system (deļ¬ned to include the police, criminal proceedings, the
Crown Prosecution Service, protection of witnesses, support of victims,
prisons and probation). This reform was ļ¬ercely and ultimately successfully
opposed by a wide spectrum of informed opinion on the ground that the
establishment of a single inspectorate would inevitably mean the loss of focus
and expertise of the previous separate bodies. On 11 October 2006 the pro-
posed amalgamation of the inspectorates was overwhelmingly defeated in the
House of Lords, by 211 to 98, and, facing the inevitable, the Government
abandoned the project.
ā€¢ Part 7 (Procedure Rules and Practice Directions) ā€“ provides for the amalga-
mation into a single new Criminal Procedure Rule Committee of the two
existing separate Rule Committees for the Crown Court and magistratesā€™
courts. (This has already led to important developments in the form of the
promulgation of the Criminal Procedure Rules ā€“ see pp. 153ā€“55 below.)

Auldā€™s proposal for a middle tier of jurisdiction rejected
Lord Justice Auld proposed that there be a new court ā€“ to be called the District
Division ā€“ between the magistratesā€™ court and the Crown Court:177
There should be a third tier for the middle-range of cases that do not warrant
the cumbersome and expensive fact-ļ¬nding exercise of trial by judge and jury,
but which are suļ¬ƒciently serious or diļ¬ƒcult, or their outcome is of such conse-
quence to the public or defendant to merit a combination of professional and
lay judges, but working together in a simpler way.178
Such cases, Auld suggested, ā€˜could be those where, in the opinion of the court,
the defendant could face a sentence of imprisonment of up to, say, two years or
a substantial ļ¬nancial or other punishment of an amount or severity to be
determinedā€™.

175
Inspection Reform: Establishing an Inspectorate for Justice and Community Safety, March 2005.
176
The Police, the Crown Prosecution Service, court administration, prisons and the National
177 178
Probation Service. Auld, pp. 275ā€“81. Ibid, p. 277, para. 26.
40 The organisation of trial courts


The proposal attracted a great deal of criticism, especially for its likely eļ¬€ect
in reducing cases tried by juries and it was rejected. The Governmentā€™s July 2002
White Paper stated: ā€˜we are not convinced that there is a strong enough case to
justify introducing a new ā€œintermediate tierā€ court, as was recommended by Sir
Robin Auldā€™.179


4. IT for the courts
The story of IT for the courts has, at least until very recently, been one of dismal
failure. The main problem is failure to integrate a system that operates in all the
relevant agencies. It has been the subject of sharp criticism by one oļ¬ƒcial com-
mittee after another. In 1995 a Government study (the Maseļ¬eld Report) said
progress had been ā€˜very slowā€™ and ā€˜a step changeā€™ was now needed. (ā€˜There is a
pressing need for agencies to share goals, to work more proactively together to
improve systems and to be far more outward-facing in their strategies. The sys-
temic nature of criminal justice must be more eļ¬€ectively recognised and
managed if major ineļ¬ƒciencies and seriously under-optimal investment is to be
avoidedā€™.) In 1998 the Glidewell Report on the Crown Prosecution Service,
having quoted the above words from Maseļ¬eld, said: ā€˜what is sad is that this
statement of the obvious can be repeated with equal relevance three years laterā€™
(ibid). Only now there was even greater urgency because of the major commit-
ments that already existed or were about to be made by the various agencies.
Contracts with providers would be for seven to twelve years and would be
diļ¬ƒcult and/or costly to alter:
The fact that within the criminal justice system a number of largely uncoor-
dinated projects are about to be contracted seems to us, at best, to be a sure
recipe for sub-optimisation and at worst, to signal the possibility of near
disaster.180
In 1999 the same problem was described in the National Audit Oļ¬ƒceā€™s Report,
Criminal Justice: Working Together:181
Each organisation in the criminal justice system is independently responsible for
developing its own business processes and information ļ¬‚ows, and for identify-
ing, developing and procuring information technology to support them. As a
result, information systems have historically been developed in isolation. Moves
toward the automated exchange of information have been slow and constrained
by the diļ¬€erent systems in use and the fact that they were not designed to com-
municate with each other.
In October 2001 Lord Justice Auld again repeated this analysis:
Each of the main criminal justice agencies has introduced, or is about to intro-
duce, a system designed for its own needs, and with varying or no ability to

179 180
White Paper, p. 72, para. 4.19. Glidewell, p. 186.
181
HC 29, Session 1999ā€“2000, at p. 117, para. 6.6.
41 IT for the courts


communicate directly its electronically stored information to other agencies
that need it.182
Auld described as ā€˜a public disgraceā€™ the fact that manual systems still played an
important part in the operation of the criminal justice system.183 The ineļ¬ƒciency
of the development of IT for the criminal justice system was even more of a public
disgrace.184 He made a series of recommendations, the most important of which
was that the project of linking the six main IT systems in the criminal justice
system be scrapped in favour of a single integrated system for all the agencies.185
Since then there has been some progress ā€“ more in the criminal than in the civil
courts. The extent of the progress with regard to the criminal justice system can
be traced on www.cjit.gov.uk which gives details of the various projects and of
the state of play with regard to each.186 (It states that the Government had
invested ā€˜an unparalleled Ā£1.95 billion into the Criminal Justice Information
Technology programmeā€™.187) In March 2006 it was reported that a national case
progression system (PROGRESS) connecting defence lawyers, the CPS, Crown
Courts and magistratesā€™ courts had been given a funding go-ahead with a view
to introduction in phases from 2007.188
The judge with the main responsibility for taking the issue forward initially
was Lord Justice Brooke. In a lecture in 2004189 he said that his main concern
was with regard to the civil justice system:
In January 2001 the Court Service published a consultation paper on
Modernising the Civil Courts. This paper described the very serious diļ¬ƒculties
very frankly. Six months later a judgesā€™ working group, led by Mr Justice
Cresswell, published its own report. They started with a description of the prob-
lems which nearly every judge in the country faces every day. The list began:
ā€˜insuļ¬ƒcient staļ¬€ ā€“ high staļ¬€ turnover leading to the use of inexperienced staļ¬€
ā€“ missing or chaotic ļ¬les ā€“ court orders take too long to be drawn and are often
drawn incorrectly ā€“ lack of proper administrative support for the judiciaryā€™.

182 183
Auld, Ch. 8, p. 353, para. 92, n. 73. Auld, Ch. 8, p. 394, para. 94.
184
ā€˜At best the system is ineļ¬ƒcient and wastefulā€™ (Auld, p. 355, para. 99).
185
Auld, pp. 308 and 365ā€“66.
186
CPS ā€“ COMPASS case management system fully implemented; Police ā€“ NSPIS custody system
live in seventeen out of forty-two areas; NSPIS case preparation system live in twenty-one
areas; magistratesā€™ courts ā€“ LIBRA live in two areas; LINK project (national roll out of
information and communication technology infrastructure across the Court Service) ā€“
completed by spring 2006; Probation and Prison Service ā€“ Oļ¬€ender Risk Assessment System
(OASys) giving updated oļ¬€ender information to both organisations by linking the two
separate OASys systems ā€“ supposedly completed March 2006; XHIBIT ā€“ providing case
progress to Crown Courts and approved members of the criminal justice community (police,
CPS, prisons, probation, Youth Oļ¬€ending Teams etc.) ā€“ live in all forty-two areas; CJS
exchange XHIBIT portal ā€“ permitting approved criminal justice agencies access to Crown
Court hearing information via XHIBIT will beneļ¬t the police, witnesses, victim support etc. ā€“
live in all areas; secure e-mail for criminal justice agenciesā€“ live in all areas.
187 188
www.cjit.gov.uk. Law Societyā€™s Gazette, 2 March 2006, p. 11.
189
ā€˜Court modernisation and the crisis facing our civil courtsā€™ a lecture to the Society of
Advanced Legal Studies, London, given by Lord Justice Brooke on 24 November 2004
(www.dca.gov.ukā€“ Judges ā€“ Speeches).
42 The organisation of trial courts


Later on they said that very few members of court staļ¬€ had real IT expertise, and
that there was a chronic lack of funds even for basic equipment . . .
These were the problems. Part of the solution was to install an IT infrastruc-
ture into all the main civil and family court centres, and to provide judges and
court staļ¬€ with the specialist software they needed so as to introduce order out
of chaos. There were also plans for new business centres, so that undefended
business could be dealt with somewhere else, and the court centres could con-
centrate on defended business.
But the plans had gone awry.
In July 2002 the Treasury pulled the plug on all this. We had been allocated Ā£30
million for the start of the programme in 2003ā€“4, and this sum seemed to be
carried forward each year until April 2006. In other words, it looked as if Ā£100
million in all would be available, but without further funding we could not pos-
sibly complete the job and commission the specialist software we needed. The
project team working on that part of the programme had to be disbanded
immediately. In the event the limited funding was cut by a quarter . . .
Two and a half years ago I really thought we were on the way to creating new
arrangements for civil and family justice of which this country could be proud.
Now I see no light on the horizon at all. I do not even see any evidence that the
scale of the problem is being properly addressed because there are so many other
initiatives currently being pursued, which are distracting the attention of our
policy-makers. And so long as the Treasury insists on its full cost recovery
regime, things can only get worse. Much worse.
Lord Justice Brooke was clearly in despair about the miserable state of progress
in IT for the civil system. But the fact that the criminal justice system was
getting so much more in funding did not seem to translate into operational
success.
By the end of 2006, Libra, the magistratesā€™ court system, was ā€˜over-budget and
behind scheduleā€™. It was only ā€˜liveā€™ in nine courts. COMPASS, the CPS system,
was up and running connecting the 2,800 CPS lawyers, police charging centres,
and courts.190 However, a report in October 2006 by the House of Commons
Public Accounts Committee said that, having procured COMPASS at a cost of
Ā£300m over ten years, ā€˜the Crown Prosecution Service has yet to make full use
of the systemā€™s capabilitiesā€™. Staļ¬€ failed to update the information on ļ¬le in the
system, correspondence was misļ¬led or sent to the wrong address. COMPASS
and LIBRA would not be integrated for at least another year.191


5. The tribunal system
The work of the courts is supplemented by the large number of administrative
tribunals. Tribunals sit for more days than the High Court and the county courts
190
ā€˜Taking the CPS into the 21st centuryā€™, Law Societyā€™s Gazette, 21 September 2006, p. 15.
191
House of Commons Public Accounts Committee, Crown Prosecution Service: Eļ¬€ective Use of
Magistratesā€™ Courts Hearings, July 2006, HC 982, p. 10.
43 The tribunal system


put together and hear many more contested cases than the ordinary courts. The
Leggatt inquiry into tribunals published in March 2001192 stated that there were
some seventy tribunals and that between them they dealt with nearly one million
cases a year ā€“ though only twenty of the seventy tribunals dealt with more than
500 cases a year and many were defunct. Their quality varied from excellent to
inadequate. The so-called tribunal system was not a system at all:
What we have found . . . is that the present collection of tribunals has grown up
in an almost entirely haphazard way. Individual tribunals were set up, and
usually administered by departments, as they developed new statutory schemes
and procedures. The result is a collection of tribunals, mostly administered by
departments, with wide variations of practice and approach, and almost no
coherence. The current arrangements seem to us to have been developed to meet
the needs and conveniences of the departments and other bodies which run tri-
bunals, rather than the needs of the users.193
Leggatt said that the lack of coherence had brought with it many diļ¬ƒculties and
weaknesses in the performance of tribunals. The report outlined what would be
a new ā€˜single, overarching structureā€™. There would be nine subject divisions
dealing with immigration, social security and pensions, land and valuation,
ļ¬nancial including taxation, transport, health and social services, education,
regulatory and employment. Appeals would go to a single appellate division
which would sit in panels related to the nine divisions. There would be a new
Tribunals Service operating parallel to the Courts Service and under the Lord
Chancellor ā€“ so that administration of tribunals would be taken away from their
parent Government Departments.
In August 2001 the Government published a consultation paper (Tribunals
for Users) inviting views. Unsurprisingly, there was resistance in Whitehall to the
suggestion that departments should lose stewardship of their respective tri-
bunals.194 Nevertheless, in March 2003, Lord Irvine, in one of his last acts as
Lord Chancellor, announced that the main Leggatt recommendation of the
establishment of a new uniļ¬ed Tribunals Service was to be implemented.195
The uniļ¬ed Tribunals Service would have as its core the top ten non-devolved
tribunals which currently existed: the Appeals Service, the Immigration
Appellate Authority, the Employment Tribunals Service, the Criminal Injuries
Compensation Appeals Panel, the Mental Health Review Tribunal, the Oļ¬ƒce
for Social Security and Child Support Commissioners, Tax Tribunals, Special
Education Needs and Disability Tribunals, the Pensions Appeal Tribunal and
the Lands Tribunal. They would be included in the new uniļ¬ed service between
2006 and 2008. Any new tribunal would be brought into the uniļ¬ed system.

192
Tribunals for Users: One System, One Service (www.tribunals-review.org.uk).
193
Leggatt, p. 15.
194
Lord Justice Brooke wrote: ā€˜departments of state could not see why they had to surrender part
of their ļ¬efdom to Lord Irvineā€™s growing empireā€™ (Counsel, November 2004, p.11). Sir Henry
Brooke was the Lord Chief Justiceā€™s nominee to help prepare the reform. He was subsequently
195
replaced by Lord Justice Carnwath. LCD Press Notice 106/03, 11 March 2003.
44 The organisation of trial courts


In July 2004, developing its plans, the Government published a wide-ranging
White Paper (Transforming Public Services: Complaints, Redress and Tribunals).
It covered not just dispute resolution in the context of tribunals but a wider
range of administrative justice including ombudsmen and the courts. It empha-
sised the desirability of proportionate dispute resolution, with the maximum
number of disputes being resolved without recourse to hearings. Ombudsman
services were especially commended: ā€˜Ombudsman services have shown that
perfectly sound decisions can be made which fully respect the rights of parties
without formal hearingsā€™.196 (The Financial Services Ombudsman Service
(FOS) in particular was praised for its tiers of intervention ā€“ ranging from
initial advice through to conciliation and adjudication, with a ļ¬nal decision by
the ombudsman only if necessary.197) The proposed new Tribunals Service, the
White Paper said, should be a ā€˜new type of organisation which will not only
provide formal hearings and authoritative rulings where these are needed but
will have as well a mission to resolve disputes fairly and ļ¬nally either by itself or
in partnership with the decision-making department, other institutions and the
advice sectorā€™.198 The White Paper envisaged that tribunal staļ¬€ would have the
power to innovate in ļ¬nding new ways of resolving disputes.
The Tribunal Service (website www.tribunalsservice.gov.uk), the new execu-
tive agency to run the tribunals system, was launched in April 2006. It has
responsibility for 21 tribunals.
The Tribunals, Courts and Enforcement Bill to give legislative eļ¬€ect to the
new system was ļ¬nally published and introduced in the Lords on 16 November
2006. The Explanatory Notes attached to the Bill described its main features:
13. The Governmentā€™s response to Sir Andrew Leggattā€™s recommended single
tribunal system was to create two new, generic tribunals, the First-tier Tribunal
and the Upper Tribunal, into which existing tribunal jurisdictions can be trans-
ferred. The Upper Tribunal will be primarily, but not exclusively, an appellate
tribunal from the First-tier Tribunal.
14. The Bill also provides for the establishment of ā€˜chambersā€™ within the two
tribunals so that the many jurisdictions that will be transferred into the tri-
bunals can be grouped together appropriately. Each chamber will be headed by
a Chamber President and the tribunalsā€™ judiciary will be headed by a Senior
President of Tribunals . . . 199

196
White Paper, para.6.20.
197
For a description of the FOS see R. James and P. Morris, ā€˜The Financial Ombudsman Service:
a brave new world in ā€œOmbudsmanry?ā€ā€™, Public Law, 2002, pp. 640ā€“49. The FOS (website
www.ļ¬nancial-ombudsman.org.uk) was established in 2000 taking over the functions of ļ¬ve
existing ombudsman schemes: the Banking Ombudsman, Building Societies Ombudsman,
Insurance Ombudsman, Investment Ombudsman and Personal Investment Authority
Ombudsman. In 2004ā€“05 it received over 110,000 new complaints. Over half (55 per cent) of
the complaints handled in the year were dealt with informally by ā€˜guided mediationā€™; 38 per
cent were handled more formally, generally involving adjudication; only 7 per cent were
resolved by decisions of an ombudsman. The complainant is charged nothing. The unit cost
(total costs divided by completed cases) was Ā£496 per case (Annual Report, 2004ā€“05).
198 199
White Paper, para. 4. 21. The ļ¬rst President appointed was Lord Justice Carnwath.
45 The tribunal system


17. The Bill creates new oļ¬ƒces for the First-tier and Upper Tribunal. It creates
new titles (giving the legal members the title of judges) and a new system of
deployment. Judges of the First-tier Tribunal or Upper Tribunal will be assigned
to one or more of the chambers of that tribunal, having regard to their knowl-
edge and experience. The fact that a member may be allocated to more than one
chamber allows members to be deployed across the jurisdictions within the tri-
bunal. It is expected that members of existing tribunals will become members
of the new tribunals.


Reviews and appeals and the judicial review jurisdiction of the tribunals
18. Currently there is no single mechanism for appealing against a tribunal deci-
sion. Appeal rights diļ¬€er from tribunal to tribunal. In some cases there is a right
of appeal to another tribunal. In other cases there is a right of appeal to the High
Court. In some cases there is no right of appeal at all. The Bill provides a uniļ¬ed
appeal structure. Under the Bill, in most cases, a decision of the First-tier Tribunal
may be appealed to the Upper Tribunal and a decision of the Upper Tribunal may
be appealed to a court. The grounds of appeal must relate to a point of law. The
rights to appeal may only be exercised with permission from the tribunal being
appealed from or the tribunal or court, as the case may, being appealed to.
19. It will also be possible for the Upper Tribunal to deal with some judicial
review cases which would otherwise have to be dealt with by the High Court or
Court of Session. The Upper Tribunal has this jurisdiction only where a case falls
within a class speciļ¬ed in a direction given by the Lord Chief Justice or in certain
other cases transferred by the High Court or Court of Session, but it will not
generally be possible for cases to be transferred to the Upper Tribunal if they
involve immigration or nationality matters.
20. Instead of tribunal rules being made by the Lord Chancellor and other gov-
ernment Ministers under a multiplicity of diļ¬€erent rule-making powers, a new
Tribunal Procedure Committee will be responsible for tribunal rules. This com-
mittee has been modelled on existing rule committees which make rules of court.


Transfer of tribunal functions
21. It is intended that the new tribunals will exercise the jurisdictions currently
exercised by the tribunals listed in Parts 1 to 4 of Schedule 6, which constitute
most of the tribunal jurisdictions administered by central government. The
Governmentā€™s policy is that in the future, when a new tribunal jurisdiction is
required to deal with a right of review or appeal, that right of appeal or review
will be to these new tribunals.
22. Some tribunals have been excluded from the new structures because of
their specialist nature. Tribunals run by local government have for now been
excluded, as their funding and sponsorship arrangements are suļ¬ƒciently
diļ¬€erent to merit a separate review.
The role of the new Tribunal Service is wider than merely running an eļ¬ƒcient
executive operation. Its task includes taking the initiative across Whitehall to
ensure that more decisions are right ļ¬rst time and that disputes are resolved, so
far as possible, without recourse to hearings before tribunals at all.
46 The organisation of trial courts


Under the Bill, the Council on Tribunals,200 which oversees tribunals, will be
renamed the Administrative Justice and Tribunals Council (AJTC). Following
the recommendations of the Leggatt report, its remit will include important
new functions: keeping under review the performance of the administrative
justice system as a whole; reviewing the relationship between the components
of the system (in particular ombudsmen, tribunals and the courts) to ensure
that these are clear, complementary and ļ¬‚exible; identifying priorities for
research; and providing advice and making recommendations to ministers.
See generally Professor M. Adler, ā€˜Tribunal Reform: Proportionate Dispute
Resolution and the Pursuit of Administrative Justiceā€™ (2006) 69 Modern Law
Review pp. 958ā€“85, and Genevra Richardson and Hazel Genn, ā€˜Tribunals in
Transition: Resolution or Adjudication?ā€™ Public Law, 2007, pp. 116ā€“41. See also
S. Prince, ā€˜Mandatory Mediation: The Ontario Experienceā€™, 26 Civil Justice
Quarterly, 2007, pp. 79ā€“95.

200
The Council (website www.council-on-tribunals.gov.uk) was set up by the Tribunals and
Inquiries Act 1957 as a watchdog on the working of tribunals. It publishes an annual report.
Chapter 2

Pre-trial civil proceedings




1. Introduction
This chapter deals with the problems of the pre-trial stages of a civil action
which set the stage for the trial ā€“ if there is one. There are two main reasons why
the pre-trial stage of litigation is vital. One is that in the great majority of cases
the proceedings never reach trial. Secondly, in the rare cases that go to trial, the
outcome is usually determined by what has been achieved by way of collection
and preparation of evidence in the pre-trial stage.
Pre-trial civil process has repeatedly been the subject of reports and
inquiries ā€“ more than sixty over the past hundred years! (These are issues and
problems that seem not to go away.) Since 1968 there has been the report of the
Winn Committee,1 the Report of the Cantley Committee,2 the massive Civil
Justice Review 1985ā€“883 and the Heilbron-Hodge Working Party set up jointly
by the Bar and the Law Society.4 The recommendations of these bodies were
dealt with extensively in earlier editions of this work. For reasons of economy
of space, they are treated here lightly, since the new system which took eļ¬€ect in
April 1999 was based essentially on the recommendations made by Lord Woolf
in his June 1995 Interim Report5 and his July 1996 Final Report both entitled
Access to Justice. Virtually every topic dealt with in this chapter is aļ¬€ected by the
Woolf Report.
The gestation period from the Final Report of Access to Justice to implemen-
tation in April 1999 was just under three years. Given the radical nature of the
changes made and their immense scope, this was a remarkable achievement.
The Woolf reforms, like those of previous attempts at reform of civil justice,
were mainly aimed at the three problems of cost, delay and complexity. As will

1
Report of the Committee on Personal Injuries Litigation, 1968, Cmnd. 369.
2
Report of the Personal Injuries Litigation Procedure Working Party, 1979, Cmnd. 7476.
3
For a full account of its recommendations, see the 30-page note in the Civil Justice Quarterly,
1988, pp. 281ā€“312. See also the reļ¬‚ections of a member of the Civil Justice Review formerly
with the National Consumer Council: Richard Thomas, ā€˜Civil Justice Review ā€“ Treating
Litigants as Consumersā€™, 6 Civil Justice Quarterly, 1990, p. 51.
4
Civil Justice on Trial ā€“ the Case for Change, 1992.
5
For an extended account of its recommendations, see the 30-page note in 11 Civil Justice
Quarterly, 1995, pp. 231ā€“49.
48 Pre-trial civil proceedings


be seen, the main thrust of the project was to transfer the chief responsibility
for progressing cases from the parties and their lawyers to the court.
The overriding objective At the heart of the new system is the ā€˜overriding
objectiveā€™ which is set out in Part I, r. 1.1 of the new Civil Procedure Rules
(CPR). The opening words of the new rules state: ā€˜these Rules are a new proce-
dural code with the overriding objective of enabling the court to deal with cases
justlyā€™. Rule 1.1(2) then articulates what is meant by dealing with a case justly.
ā€˜Dealing with a case justly includes, so far as is practicable: (a) ensuring that the
parties are on an equal footing;6 (b) saving expense; (c) dealing with the case in
ways which are proportionate (i) to the amount of money involved; (ii) to the
importance of the case; (iii) to the complexity of the issues; (iv) to the ļ¬nancial
position of each party; (d) ensuring that it is dealt with expeditiously and fairly;
and (e) allotting to it an appropriate share of the courtā€™s resources, while taking
into account the need to allot resources to other casesā€™.
These propositions are intended to have an impact at all times. CPR 1.2 states
that these factors must be taken into account whenever the court exercises any
power given to it by the rules or interprets any rule. Moreover, the duty to
comply with the overriding objective applies not only to the courts but also
to the parties. Rule 1.3 states: ā€˜the parties are required to help the court to
further the overriding objectiveā€™. This applies to all stages of a dispute. So, for
instance, the Practice Direction on Pre-action Protocols (p. 60 below) states
that the court will expect the parties, ā€˜in accordance with the overriding objec-
tiveā€™, to act reasonably in exchanging information and documents and gener-
ally in trying to avoid the necessity for the start of proceedings (para. 4).
Lord Woolf ā€™s Final Report said that the overriding objective ā€˜provides a
compass to guide courts and litigants and legal advisers as to their general
courseā€™ and this has become a reality.
It will be noted that the listed considerations which make up the overriding
objective are very broad and not necessarily consistent. In truth, they will justify
any decision the court is minded to make. As the practitionerā€™s bible, the White
Book said: ā€˜it is probably true to say that, in almost any circumstances in which
the court exercises a power given to it by the CPR, it would be possible to justify
(at least in part) the particular manner in which the power is exercised in the
light of one or other of the aspects of the overriding objectiveā€™.7
In Holmes v. SGB Services Plc 8 the judge granted an application to vacate the
trial date, to amend particulars of claim and to re-instruct the expert. He said
there was a tension between rules emphasising the maintaining of trial dates
and the interests of justice in achieving a fair trial. Dismissing the other sideā€™s
appeal, the Court of Appeal doubted whether any such tension existed. Lord


6
It has been held that this concept of a ā€˜level playing ļ¬eldā€™ does not mean that it is wrong for
one side to instruct a QC where the other has only a junior barrister (Maltez v. Lewis (1999)
7
21 Gaz 39, (1999) Times, 4 May). Civil Procedure, 2002, vol. 1, p. 9.
8
[2001] EWCA Civ 354.
49 Introduction


Justice Buxton said that in making the case management decision, the court has
to balance all the criteria in CPR 1.1 without giving any of them undue weight.
Striking a balance was a matter for the judge and it would be wrong for the
Court of Appeal to give, or for judges to seek, any direction suggesting that one
or other of the criteria was more or less important.
It is unrealistic to say that the tension does not exist. Clearly it does. If, as in
Holmes, two or more of the criteria point in diļ¬€erent directions, the judge,
having weighed them, must decide which he favours. So in each such case one
or more of the criteria will be held to be ā€˜more importantā€™ than others.
The crux of the matter is whether the court should give primary weight to the
determination of cases justly in the sense of substantive justice on the facts of
the case or whether substantive justice on the facts of the case is only one of the
factors to be taken into account. The point was made strongly by Professor A.
Zuckerman, editor of the Civil Justice Quarterly:
The CPR are founded on three imperatives: reaching substantively correct
outcomes, by means of proportionate resources, and in a reasonable time.
The overriding objective consists in ā€˜enabling the courts to deal with cases
justlyā€™ (CPR, r. 1.1(1)). Doing justice is the goal of any enlightened system of
civil litigation. However the notion of doing justice is capable of a variety of
interpretations. Under the previous system doing justice was thought to
require merely arriving at a judgment that was correct as a matter of fact and
law. That is to say, doing justice consisted of reaching a correct decision no
matter how long it took and how much it cost the litigants and the court. The
CPR broke with this tradition by establishing that doing justice on the merits
is not the sole overarching principle. Rather, justice on the merits has to be
achieved within a reasonable time and by using no more than proportionate
resources.9
The context was the grotesque saga of the case brought against the Bank of
England by the liquidators of the Bank of Credit and Commerce International
AS (BCCI).10 What had gone wrong there, Zuckerman argued, turned on
the decision of the majority of the House of Lords in which the Law
Lords had reverted to the pre-CPR philosophy.11 The result of such an
approach, he warned, would be fatal to the CPR reforms: ā€˜unless all levels


9
25 Civil Justice Quarterly, 2006, pp. 287ā€“311 at 307.
10
The claim was estimated to involve potential damages of over Ā£500 million. It dragged on for
twelve years. The case came to an end in November 2005 on day 256 of the trial when the
claimants abandoned the action. Ten years earlier, in November 1995, Justice Clarke had ruled

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