Magistrate

Magistrate

Sir Lyman Poore Duff, a former judge of the Supreme Court of Canada
Occupation
Names Judge, Justice of the Peace, magistrate
Occupation type
 Profession
Activity sectors
 Law
Description
Competencies Analytical mind, critical thinking, impartiality, common sense
Education required
 Usually experience as an advocate (varies by jurisdiction)
Fields of
employment
 Courts
Related jobs
 Barrister, solicitor, prosecutor

The term magistrate is used in a variety of systems of governments and laws to refer to a civilian officer who administers the law. In ancient Rome, a magistratus was one of the highest ranking government officers, and possessed both judicial and executive powers. In other parts of the world, such as China, a magistrate was responsible for administration over a particular geographic area. Today, in some jurisdictions, a magistrate is a judicial officer who hears cases in a lower court, and typically deals with more minor or preliminary matters. In other jurisdictions (e.g., England and Wales), magistrates may be volunteers without formal legal training who perform a judicial role with regard to minor matters.

Original meaning

In ancient Rome, the word magistratus referred to one of the highest offices of state. Analogous offices in the local authorities, such as municipium, were subordinate only to the legislature of which they generally were members. ex officio, often a combination of judicial and executive power, 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. However, it was used mainly in 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.

Continental Europe and its former colonies

Under the "civil law" systems of European countries, such as Belgium, France, Italy and the Netherlands, magistrat (French), magistrato (Italian) and magistraat (Dutch) are generic terms which comprise both prosecutors and judges, distinguished as the 'standing' versus 'sitting' magistrature, respectively.

In Portugal, besides being used in the scope of the judiciary to designate prosecutors and judges, the term magistrado was also used to designate certain government officials, like the former civil governors of district. These were referred as "administrative magistrates" to distinguish them from the judiciary magistrates. The President of Portugal is considered the Supreme Magistrate of the Nation.

In Finland, maistraatti (the Finnish-language cognate of "magistrate", officially translated as "local register office"[2]) is a state-appointed local administrative office whose responsibilities include keeping population information and public registers, acting as a public notary and conducting civil marriages.

Mexico

In Mexico's Federal Law System, a magistrado (magistrate) is a superior judge (and the highest-ranking State judge), hierarchically beneath the Supreme Court Justices (Ministros de la Corte Suprema).

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.

English common law tradition

United Kingdom

England and Wales

In the courts of England and Wales, magistrates—also known as justices of the peace (JPs)—are volunteers who hear prosecutions for and dispose of 'summary offences' and some 'triable-either-way offences' by making orders with regard to and placing additional requirements on offenders. Magistrates/JPs are limited to issuing sentences of no longer than six months for one offence and up to twelve months consecutively for multiple offences. Magistrates/JPs have other limitations in their sentencing authority with powers extending to a maximum of a £5,000 fine, community orders which can include curfews, electronic tagging, requirements to perform unpaid work up to 300 hours, and supervision for up to three years. In more serious cases, magistrates can send 'either-way' offenders to the Crown Court for sentencing when the magistrate feels a penalty should be imposed that is more severe than the magistrate is capable of sentencing.

A wide range of other legal matters is within the remit of magistrates. In the past, magistrates have been responsible for granting licenses to sell alcohol, for instance,[3] 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 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 after 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 magistrates[4] in England and Wales: justices of the peace and district judges (formerly known as stipendiary magistrates) who hold office as members of the professional judiciary. According to requirements, around 50% of magistrates are women. Over 41% of magistrates are retired from employment while others may be self-employed or able to arrange leave from their employment.

No formal qualifications are required, but magistrates require 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 three days of training before sitting, carried out in conjunction with a mentoring program (mentors are magistrates with at least three years' service),[5] which covers basic law and procedure. They continue to receive training throughout their judicial career. Additional training is given to magistrates choosing to sit in the Youth Court or those dealing with family matters. New magistrates sit with mentors on at least six occasions during their first eighteen months.

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 while sitting as a magistrate, up to £116.78 a day. A justice of the peace may sit at any magistrate's court in England and Wales, but in practice, they 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. Many are members of the Magistrates' Association, which provides advice and training and represents the approximately 28,000 magistrates to the government. The Association also represents magistrates on the Sentencing Guidelines Council.

Members of the second group are known as District Judges (Magistrates' Courts). Unlike magistrates, District Judges (Magistrates' Courts) sit alone. They are appointed by open competition through a process administered by the JAC and are required to be qualified solicitors, barristers, or chartered legal executives. Some also sit in the family court. 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.[6]

Scotland

In the courts of Scotland, the office of stipendiary magistrate was established by Section 5 of the District Courts (Scotland) Act 1975,[7]:Section 5 and was replaced by the office of summary sheriff by Section 218 of the Courts Reform (Scotland) Act 2014.[8] In Scotland, the lowest level of law-court, the Justice of the Peace Court, is presided over by a Justice of the Peace. Stipendiary magistrates are, ex officio, justices of the peace, and when sitting in a JP court had the summary criminal jurisdiction and powers of a sheriff.[7]:Section 5

Australia

Federal Magistrate

A Federal Magistrate was an office created on 23 December 1999 along with the establishment of the Federal Magistrates Court by the Australian Government as a result of royal assent of the Federal Magistrates Act 1999 (Cth).[9] Its first judicial officers were appointed in 2000; it first applications were filed on 23 June 2000 and the Court’s first sittings were conducted on 3 July 2000 in Adelaide, Brisbane, Canberra, Melbourne, Newcastle, Parramatta and Townsville.

The Federal Magistrates' Court of Australia dealt with more minor Commonwealth law matters which had previously been heard by the Federal Court of Australia (administrative law, bankruptcy, consumer protection, trade practices, human rights, and copyright) or the Family Court (divorce, residence [or custody], and contact with [or access to] the children, property division upon divorce, maintenance, and child support). In some areas, such as bankruptcy and copyright, the court had virtually unlimited jurisdiction.

The Federal Magistrates would 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 A$700,000 or less and consumer law matters (trade practices) where the amount claimed is less than $750,000. The first Chief Federal Magistrate, Diana Bryant left the court in 2004 when she was appointed Chief Justice of the Family Court of Australia, the third person to be appointed that position since the establishment of the Family Court.

Eventually, the Federal Magistrates Court assumed a significant part of the workload of the Federal Court and the Family Court. By May 2004, 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 Federal Magistrates Court was exercising 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.

On 12 April 2013, in recognition of its increased jurisdiction and its role as an intermediate court servicing regional centres as well as capital cities throughout Australia, the Federal Magistrates Court was renamed the Federal Circuit Court of Australia, the Act renamed as the Federal Circuit Court of Australia Act 1999, and its judicial officers received the title "Judge" instead of "Federal Magistrate".[10]

State Magistrate

The State Magistrates in Australia derive from the English Magistrates. All Magistrates are salaried officers.

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 A$40,000 to A$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 Honor" in all states. This was partly to recognize the increasing role magistrates play in the administration of justice, but also to recognize the archaic nature of "Your Worship", and the tendency for witnesses and defendants to incorrectly use "Your Honor" in any event. It is also acceptable to address a magistrate simply as Sir or Madam.

Hong Kong

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.

India

There are four categories of magistrates in the Judiciary of India. This classification is given in the Criminal Procedure Code, 1973 (CrPC). It stipulates that in each sessions district, there shall be:

1.The Chief Judicial Magistrate [CJM] (including Additional Chief Judicial Magistrates.) CJMs hear all types of criminal cases. All magistrates' courts are controlled by the CJM. The CJM looks over the work of judicial magistrates, but cannot take any action against them. The CJM can only report the misbehavior of judicial magistrates to the High Court. A court of Chief Judicial Magistrates can sentence a person to jail up to ten years and impose fines of up to ₹30,000 (US$470). The CJM is the most senior among all magistrates in their district.

2. There is a Sub-Divisional Judicial Magistrate (SDJM) in every subdivision. They hear cases related to the Dowry Act, EC Act, and other criminal cases. They also maintain and control the judicial court below them. A court of Sub-Divisional Judicial Magistrates may sentence a person to fines of up to ten years and impose fine up to ₹25,000 (US$390). Judicial magistrates can try criminal cases.

3. A Judicial Magistrate First Class can sentence a person to jail for up to seven years and impose a fine of up to ₹15,000 (US$230).

4. 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 by Sections 107-110, 133, 144, 145, and 147 of the CrPC. 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 (Section 144 CrPC). There is no specific provision to order a "curfew". The Executive Magistrates alone are authorised to use force against people. In plain language, they alone can disperse an "unlawful assembly". Technically, the police are to assist the Executive Magistrate. Executive Magistrates can dictate to the police the manner of force (baton charge/ tear gas/blank fire/firing) and also, how much force should be used. They can also seek the assistance of the Armed Forces to quell a riot.

Each District contains the following Judicial Magistrates:

There are, in each Administrative 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.

These magistrates 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. Tehsildars and Deputy/Additional Tehsildars 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.

Bangladesh

According to the Code of Criminal Procedure(CrPC),1898; there are two classes of Magistrates in Bangladesh,namely: -

(a) Judicial Magistrate; and

(b) Executive Magistrate.

There shall be four classes of judicial Magistrate, namely:

(a) Chief Metropolitan Magistrate in Metropolitan Area and Chief judicial Magistrate to other areas

(b) Magistrate of the first class, who shall in Metropolitan area, is known as Metropolitan Magistrate

(c) Magistrate of the second class

(d) Magistrate of the third class

Executive Magistrate

According to the section-10(6)of the Code of Criminal Procedure(CrPC)1898, members of Bangladesh Civil Service(Administration) Cadre, who are in the capacity of Assistant Commissioner, Upozila Nirbahi Officer(UNO), and Additional Deputy Commissioner(ADC) shall be Executive Magistrates and may exercise the power of Executive Magistrate within their existing respective local areas. Besides this, according to the provision of the section-10(5) of CrPC,1898; The Government may, if it thinks it expedient or necessary, appoint any persons employed in the Bangladesh Civil Service (Administration) to be an Executive Magistrate and confer the powers of an Executive Magistrate on any such member.

Every Administrative District has the following Executive Magistrates:

(a) District Magistrate (DM): In every district and in every Metropolitan Area, the Government shall appoint as many persons as it thinks fit to be Executive Magistrates and shall appoint one of them to be the District Magistrate.

(b) Additional District Magistrate (ADM): The Government may also appoint any Executive Magistrate to be an Additional District Magistrate. Additional District Magistrates shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force, as the Government may direct.

(c) Additional Deputy Commissioner (ADC): All the ADC's in the district are Executive Magistrate.

(d) Upazila Nirbahi Officer or Sub-District Executive Officer

(e) Assistant Commissioner; including Senior Assistant Commissioner and Assistant Commissioner (Land)

New Zealand

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. Under this system, two community magistrates were initially required to sit to consider a case; some of these community magistrates are still serving.

Sri Lanka

In Sri Lanka, a magistrate is a Judaical Officer appointed to preside over a Magistrate's Court to a particular jurisdiction under the Judicature Act No 02 of 1978. The post was formally known as Police Magistrate when the magistrate courts were known as police magistrate courts. Magistrates have jurisdiction over the criminal cases filed under the penal code. They carryout first mortem and post mortem examinations; issue search warrants, arrest warrants and produce suspected persons; grants bail. In many cases magistrates preside over primary courts[11] Unofficial magistrates can be appointed from among the senior lawyers of the local bar.[12] There are three types of magistrates;

United States

Magistrates are somewhat less common in the United States than in Europe, but the position does exist in some state jurisdictions and in federal courts.

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.[13][14] 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 State 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).

Federal courts

In the United States federal courts, a magistrate judge is a judicial officer authorized by 28 U.S.C. § 631 et seq. They were formerly known as U.S. commissioners, and then as magistrates. Magistrate judges, as they have been designated since 1990, 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 the 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, Congress left to the individual courts the actual determination of which duties to assign to magistrate judges.

State 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 offences. In Ohio, magistrates are subordinate to the judge or judges who appoint them, and all of their decisions are subject to the review, amendment, approval, or reversal by a judge. In some states, including West Virginia and Georgia, magistrates are elected and not appointed.

Other traditions

China

Magistrate, or chief magistrate, is also a common translation of the Chinese 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 China. 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 China, the county leader is elected by the local people's congress but the process is controlled by the Communist Party. Although there are 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. County leaders, particularly in rural areas, can have an impact on the lives of ordinary people by enforcing central government regulations or by turning a blind eye to their violation.

Switzerland

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.[15] The designation of magistrate is not a title or style. It does not, by itself, confer any particular privileges.

Taiwan

In Taiwan, 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.

Kenya

In Kenya, there are five categories of magistrates, namely: Resident Magistrate, Senior Resident Magistrate, Principal Magistrate, Senior Principal Magistrate, and Chief Magistrate. Chief Magistrate is the highest ranking among magistrates and also assumes administrative control of magistrate courts in his or her jurisdiction. A Chief Magistrate has jurisdiction in a dispute that does not exceed seven million Kenya shillings. For Senior Principal Magistrates, the limit is in disputes not exceeding five million Kenya shillings; for Principal Magistrates it is disputes not exceeding four million Kenya shillings. Senior Resident Magistrates have jurisdiction in disputes not exceeding three million Kenya shillings and Resident Magistrates in disputes not exceeding two million Kenya shillings.[16]

See also

Notes

  1. ↑ p4 and p18, Nicholas, Barry, An Introduction to Roman Law (Oxford University Press, 1975) ISBN 0-19-876063-9
  2. ↑ http://www.maistraatti.fi/en/
  3. ↑ Under a law of 1729 which instituted Brewster sessions, a special meeting of quarter sessions (Richardson, John (1974) The Local Historian's Encyclopedia. New Barnet: Historical Publications; p. 270; Hey, David, ed. (1996) The Oxford Companion to Local and Family History. Oxford University Press; pp. 46-47)
  4. ↑ Courts and Tribunals Judiciary, Magistrates: who are they.... Retrieved: 4 January 2015.
  5. ↑ The Magistracy and the work of magistrates
  6. ↑ John Thornhill, Chairman of the Magistrates' Association - Solicitors Journal - April 2011
  7. 1 2 UK Parliament. District Courts (Scotland) Act 1975 as amended (see also enacted form), from legislation.gov.uk.
  8. ↑ Scottish Parliament. Courts Reform (Scotland) Act 2014 as amended (see also enacted form), from legislation.gov.uk.
  9. ↑ Federal Magistrates Act 1999 (Cth) s 8.
  10. ↑ Federal Attorney-General's announcement
  11. ↑ Judicial Hierarchy
  12. ↑ Appointment of unofficial magistrates
  13. ↑ Education 2020 Homeschool Console; Government course - Vocabulary, "usage" section for magistrate: "The term, magistrate, is often used for any independent judge who is capable of issuing warrants and reviewing arrests."
  14. ↑ Vwcommonpleas.org
  15. ↑ See art. 1 of the Bundesgesetz über Besoldung und berufliche Vorsorge der Magistratspersonen, SR/RS 172.121.
  16. ↑ www.kenyalaw.org

References

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