Sir Lyman Poore Duff, a former judge of the Supreme Court of Canada |
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| Occupation | |
|---|---|
| Names | Judge, Justice of the Peace, magistrate |
| Activity sectors | Law |
| Description | |
| Competencies | Analytical mind, critical thinking, impartiality, common sense |
| Education required | Usually experience as an advocate (varies by jurisdiction) |
A magistrate is an officer of the state; in modern usage the term usually refers to a judge. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a magistrate has limited law enforcement and administration authority. In civil law systems, a magistrate might be a judge in a superior court; the magistrate's court might have jurisdiction over civil and criminal cases. A related, but not always equivalent, term is chief magistrate, which historically can denote a political and administrative officer.
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Magistrate derives from the Middle English word magistrat, denoting a "civil officer in charge of administrating laws" (c.1374); from the Old French magistrat; from the Latin magistratus, which derives from magister (master), from the root of magnus (great).
In ancient Rome, the word magistratus referred to one of the highest offices of state, and analogous offices in the local authorities such as municipium, which were subordinate only to the legislature of which they generally were members, often even ex officio, and often combined judicial and executive power, together constituting one jurisdiction. In Rome itself, the highest magistrates were members of the so-called cursus honorum -'career of honors'. They held both judicial and executive power within their sphere of responsibility (hence the modern use of the term "magistrate" to denote both judicial and executive officers), and also had the power to issue ius honorarium, or magisterial law. The Consul was the highest Roman Magistrate. The Praetor (the office was later divided into two, the Urban and Peregrine Praetors) was the highest judge in matters of private law between individual citizens, while the Curule Aediles, who supervised public works in the city, exercised a limited civil jurisdiction in relation to the market.[1] Roman magistrates were not lawyers, but were advised by jurists who were experts in the law.
The term was maintained in most feudal successor states to the western Roman Empire, mainly Germanic kingdoms, especially in city-states, where the term magistrate was also used as an abstract generic term, denoting the highest office, regardless of the formal titles (e.g. Consul, Mayor, Doge), even when that was actually a council. The term "chief magistrate" applied to the highest official, in sovereign entities the head of state and/or head of government.
Under the civil law systems of European countries such as Italy, Belgium and France, "magistrate" is a generic term which comprises both prosecutors and judges (distinguished as 'standing' versus 'sitting' magistrature). It should be noted that the legal systems of these countries are not identical, and thus show some relevant differences in the judiciary organization.
As for Italy, the role of prosecutors and the role of judges is radically different; they have different powers and different responsibilities. It is true that a prosecutor can become a judge and vice versa; but this can only happen in different stages of one's career, and never in the same trial.
In Finland, a magistrate is a state-appointed local administrative officer whose responsibilities include population information, public registers, acting as a public notary and conducting civil marriages and same-sex unions.
In Mexico a Magistrado (magistrate), is a superior judge (and the highest-ranking State judge) hierarchically beneath the Supreme Court Justices (Ministros de la Corte Suprema) in the Federal Law System. The magistrado reviews the cases seen by a judge in a second term, if any of the parties disputes the verdict. For special cases, there are magistrados superiores (superior magistrates) who review the verdicts of special court and tribunal magistrates.
In the courts of England and Wales, magistrates—also known as justices of the peace (JPs)—hear prosecutions for and dispose of 'summary offences' and some 'triable-either-way offences' by making orders in regard to and placing additional requirements on offenders. Magistrates can only sentence for six months for one offence and twelve months consecutively, they can also give a maximum of a £5,000 fine; community orders which can include curfews, electronic tagging, requirements to perform unpaid work up to 300 hours or supervision up to three years and or various other options. Magistrates hear committal proceedings for certain offences, and can establish whether sufficient evidence exists to pass the case to a higher court for trial and sentencing. In more serious cases, magistrates have power to pass 'either-way' offenders to the Crown Court for sentencing when, in the opinion of the magistrates, a penalty greater than can be given in the magistrates' court is warranted. A wide range of other legal matters are within the remit of magistrates. In the past, magistrates have been responsible for granting licences to sell alcohol, for instance,[2] but this function is now exercised by local councils though there is a right of appeal to the magistrates' court. Magistrates are also responsible for granting search warrants to the police and some other authorities, therefore it used to be a requirement that they live within a 15-mile (24 km) radius of the area they preside over (the commission area) in case they are needed to sign a warrant out-of-hours. However, commission areas were replaced with Local Justice Areas by the Courts Act 2003, meaning magistrates no longer need to live within 15 miles (24 km), although, in practice, many still do. Section 7 of the Courts Act 2003 states that "There shall be a commission of the peace for England and Wales— . . . b) addressed generally, and not by name, to all such persons as may from time to time hold office as justices of the peace for England and Wales". Thus every magistrate in England and Wales may act as a magistrate anywhere in England or Wales.
There are two types of magistrate in England and Wales: justices of the peace and district judges (formerly known as stipendiary magistrates) permanently employed by the Ministry of Justice (until May 2007, the Department for Constitutional Affairs). Justices of the peace sit voluntarily, apart from an allowance being paid for loss of earnings, mileage and subsistence (which are at a standardised rate agreed by the Ministry of Justice). According to requirements, around 50% of them are women. The majority are seen as "middle class, middle aged and middle minded" and over 41% of magistrates are retired from employment while others may be self-employed or able to arrange leave from their employment. That said, there are those who recognise that three de facto jurors from the community may well have a more realistic understanding of local life than a single district judge whose background is in law rather than working in the wider community.
No formal qualifications are required but magistrates need intelligence, common sense, integrity and the capacity to act fairly. Membership is widely spread throughout the area covered and drawn from all walks of life. Police officers, traffic wardens and members of the armed forces, as well as their close relatives will not be appointed, nor will those convicted of certain criminal offences including recent minor offences. All magistrates receive training over a period of three months before sitting, carried out in conjunction with a mentoring program (mentors are magistrates with approximately five years service),[3] which covers basic law and procedure and then continue to receive training throughout the first two years of their service and subsequently attend annual 'refresher courses.' Additional training is given to magistrates in the Youth Court, or those dealing with family matters. New magistrates sit with mentors on at least six occasions during their first year.
Magistrates are unpaid appointees but they may receive allowances to cover traveling expenses, subsistence and loss of earnings for those not paid by their employer whilst sitting as a magistrate. A Justice of the Peace may sit at any magistrate's court in England & Wales but in practice, are appointed to their local bench, (a colloquial and legal term for the local court), and are provided with advice, especially on sentencing, by a legally qualified Clerk to the Justices. They will normally sit as a panel of three with two as a minimum. Most are members of the Magistrates' Association, which provides advice, training and represents the approximately 30,000 magistrates to the Government. The Association also represents magistrates on the Sentencing Guidelines Council.
The second group are known as District Judges (Magistrates' Court), although hitherto they were known as Stipendiary Magistrates (which is to say, magistrates who received a stipend or payment). Unlike magistrates, District Judges (Magistrates' Court) sit alone. District Judges have tended to be appointed from the ranks of legal advisors to the magistrate's court and will be qualified solicitors or barristers. Questions have been raised by the Magistrates Association as to the legal safeguards of a single District Judge allowed to hear a case, decide the outcome and pass sentence without reference to another party.[4]
In Scotland, the lowest level of law-court, the District Court, is presided over by a Justice of the Peace. The District Courts were replaced with Justice of the Peace Courts beginning in Sheriffdom of Lothian and Borders in December 2007.
A Federal Magistrate occupies an office created in 1999. The Federal Magistrates' Court of Australia deals with more minor Commonwealth law matters which had previously been heard by the Federal Court (administrative law, bankruptcy, consumer protection, trade practices, human rights and copyright) or the Family Court (divorce, residence (or custody) and contact (or access) of the children, property division upon divorce, maintenance and child support). The court's name is misleading, in that it exercises a jurisdiction well in excess of that of the state magistrates' courts, and similar to that of the District and County courts of the Australian states.
The Federal and Family Courts continue, but the Federal Magistrates hear shorter or less complex matters or matters in which the monetary sum in disputes does not exceed given amounts. For instance property divisions where the total assets are AUD $700,000 or less and consumer law matters (trade practices) where the amount claimed is less than $750,000. However, in some areas, such as bankruptcy and copyright, the court has unlimited jurisdiction.
The Federal Magistrates’ Court has assumed a significant part of the work load of the two superior courts. By 2004/05 the court was dealing with 73% of the total number of applications made in the three courts (see the Annual Report of the Federal Magistrates' Court 2004/2005).
The State Magistrates in Australia derive from the English Magistrates. All Magistrates are salaried officers, and must be legally qualified and experienced to be eligible to be appointed.
The jurisdiction of the magistrates varies from state to state. They preside over courts which are, depending on the state, called Magistrates’ Courts, Local Courts or Courts of Petty Sessions.
Magistrates hear bail applications, motor licensing applications, applications for orders restraining a given individual from approaching a specific person (“intervention orders” or “apprehended violence orders”), summary criminal matters, the least serious indictable criminal matters, and civil matters where the disputed amount does not exceed AUD $40,000 to AUD $100,000 (depending on the State).
In some states such as Queensland and NSW, the Magistrate may appear robed, although some Magistrates are known to prefer a business suit. Magistrates presiding in the Koori Court (which deals with Aboriginal defendants) were originally of a mind not to appear robed; however elders within the Indigenous community urged Magistrates to continue wearing robes to mark the solemnity of the court process to defendants. Robing is being considered for Magistrates in other states; however, neither Counsel nor solicitors appear robed in any Australian Magistrates' court. Robing in summary courts is unlikely to extend to the legal profession.
Historically Magistrates in Australia have been referred to as “Your Worship”. (From Old English weorthscipe, meaning being worthy of respect.) However, members of the magistracy are now addressed as "Your Honour" in all states. This was partly to recognise the increasing role magistrates play in the administration of justice, but also to recognise the archaic nature of "Your Worship" and the tendency for witnesses and defendants to incorrectly use "Your Honour" in any event. It is also acceptable to address a magistrate simply as Sir or Madam.
There are currently seven magistrates' courts in Hong Kong. Magistrates exercise criminal jurisdiction over a wide range of offences. Although there is a general limit of two years imprisonment or a fine of HK$100,000, certain statutory provisions give Magistrates the power to sentence up to three years imprisonment and to impose a fine up to HK$5,000,000.
There are four categories of magistrates in India. This classification is given in the Criminal Procedure Code, 1973. It stipulates that in each sessions district, there shall be
"Chief Judicial Magistrate" includes Additional Chief Judicial magistrates also. There is a Sub Divisional Judicial magistrate in every Sub Division (SDJM) although he is technically only a Judicial Mgistrate First Class (JMFC). Judicial Magistrates can try criminal cases. A judicial magistrate first class can sentence a person to jail for up to three years and impose a fine of up to Rs 10,000. A judicial magistrate second class can sentence a person to jail for up to one year and impose a fine of up to Rs 3,000.
An Executive Magistrate is an officer of the Executive branch (as opposed to the Judicial branch) who is invested with specific powers under both the CrPC and the Indian Penal Code (IPC). These powers are conferred in the main by the following sections of the CrPC: sections 107-110 and the relevant provisions; sec 133 and sec 144 and the relevant provisions, sec 145& 147 and the relevant provisions. These officers cannot try any accused nor pass verdicts. A person arrested on the orders of a court located outside the local jurisdiction should be produced before an Executive Magistrate who can also set the bail amount for the arrested individual to avoid police custody, depending on the terms of the warrant. The Executive Magistrate also can pass orders restraining persons from committing a particular act or preventing persons from entering an area (Sec 144 CrPC). There is no specific provision to order a "curfew" The Executive Magistrates alone are authorized to use force against people. In plain language, they alone can disperse an "unlawful assembly"; technically, the police is to assist the Executive Magistrate. They can direct the police about the manner of force (baton charge/ tear gas/blank fire/ firing) and also how much force should be used. They can also take the assistance of the Armed Forces to quell a riot.
There are, in each Revenue District (as opposed to a Sessions District) the following kinds of Executive Magistrates:
All the Executive Magistrates of the district, except the ADM, are under the control of the DM; for magisterial duties, the ADM reports directly to the government and not to the DM.
These magistracies are normally conferred on the officers of the Revenue Department, although an officer can be appointed exclusively as an Executive Magistrate. Normally, the Collector of the district is appointed as the DM. Similarly, the Sub-Collectors are appointed as the SDMs. Tahsildars and Deputy/Additional Tahsildars are appointed as Executive Magistrates.
Under the old CrPC, there was no distinction between the Executive and Judicial Magistrates; some states still follow the old CrPC, e.g. Nagaland; there, the Collector is also the head of the judicial branch of the district and can pass sentences, including capital punishment, under IPC.
The position of stipendiary magistrate in New Zealand was renamed in 1980 to that of district court judge. The position was often known simply as magistrate, or the postnominal initials SM after a magistrate's name in newspapers' court reports.
In the late 1990s, a position of community magistrate was created for district courts on a trial basis; two community magistrates were initially required to sit to consider a case. Some of these community magistrates are still serving.
Magistrates are somewhat less common in the United States than in Europe, but the position does exist in some jurisdictions.
The term "magistrate" is often used (chiefly in judicial opinions) as a generic term for any independent judge who is capable of issuing warrants, reviewing arrests, etc.[5][6] When used in this way it does not denote a judge with a particular office. Instead, it denotes (somewhat circularly) a judge or judicial officer who is capable of hearing and deciding a particular matter. That capability is defined by statute or by common law. In Virginia, for example, the Constitution of 1971 created the office of magistrate to replace the use in cities and counties of the justice of the peace, which is common in many states for this function.
As noted above, the terms "magistrate" or "chief magistrate" were sometimes used in the early days of the republic to refer to the President of the United States, as in President John Adams's message to the U.S. Senate upon the death of George Washington: "His example is now complete, and it will teach wisdom and virtue to magistrates, citizens, and men, not only in the present age, but in future generations, as long as our history shall be read" (December 19, 1799).
In the United States federal courts, a magistrate judge is a judge authorized by 28 U.S.C. § 631 et seq. Magistrate judges are appointed by the life-term federal district judges of a particular court, serving terms of eight years if full-time, or four years if part-time, and may be reappointed. Magistrate judges conduct a wide range of judicial proceedings to expedite the disposition of the civil and criminal caseloads of the United States District Courts. Congress set forth in the statute powers and responsibilities that could be delegated by district court judges to magistrate judges. To achieve maximum flexibility in meeting the needs of each court, however, it left the actual determination of which duties to assign to magistrate judges to the individual courts.
In many state court systems in the United States, magistrate courts are the successor to Justice of the Peace courts, and frequently have authority to handle the trials of civil cases up to a certain dollar amount at issue, applications for bail, arrest and search warrants, and the adjudication of petty or misdemeanor criminal offenses.
Magistrate, or chief magistrate, is also a common Chinese Chinese translation of xianzhang (县长/縣長 literally: county leader) the political head of a county or xiàn (县/縣) which ranks in the third level of the administrative hierarchy of the PRC. The translation dates from imperial China in which the county magistrate was the lowest official in the imperial Chinese bureaucracy and had judicial in addition to administrative functions.
In modern day Mainland China, the county leader is technically elected by the local people's congress but in fact is appointed by the Communist Party. Although there have been some elections at the lower township level, these elections (with one exception, which was considered irregular and illegal) have not extended up to the county level. Although not an important official, county leaders, particularly in rural areas, can sometimes have a strong impact on the lives of ordinary people by enforcing central government regulations or by turning a blind eye to their violation.
In Switzerland, magistrate is a designation for the persons holding the most senior executive and judicial offices. On the federal level, the members of the Federal Council, the Federal Chancellor and the judges on the Federal Supreme Court are called magistrates.[7] The designation of magistrate is not a title or style. It does not, by itself, confer any particular privileges.
In the Republic of China (which governs the island of Taiwan, as well as the islands of Kinmen and Matsu off the Chinese coast and the islands of Pratas and Taiping in the South China Sea), magistrates are the heads of government of counties. The county magistrate elections are heavily and sometimes bitterly contested, and are often a stepping-stone to higher office. County magistrate elections were first open to election in the 1960s and, before the end of martial law in 1991, were the highest elected position of any real power and hence the focus of election campaigns by the Tangwai movement.
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