Modernising the Law: Breaches of the Peace & Justices of the Peace

Abstract

1. IntroductionJustices of the Peace ('JP's) - also called magistrates - are the 'work-horses' of the criminal law. They handle the lesser criminal offences. The office of JP derives - at least - from the early 14th century (and, possibly, considerably earlier). From an early time, JP's were encumbered with a heterogeneous collection of duties, such that they were sometimes performing criminal - and sometimes civil - tasks. Presently, there are some 26,000 JP's serving throughout England and Wales. It is an unsalaried post, although expenses are paid. Over the course of the centuries, many legal texts have been written on JP's (see Appendix A). However, they are now dated. Today, the principal practitioner texts comprise:* Stone, Justices Manual; 1* Archbold, Magistrates' Courts Criminal Practice. 2The purpose of this article is to consider how the law relating to JP's may be consolidated and improved in order to modernise it - as well as made it more accessible to JP's, lawyers and laymen. In particular, the following is asserted:* Concepts. The Germanic (and Anglo-Saxon) concepts of the 'peace' and 'breach of the peace' are no longer applicable (or intelligible) since, today, breach of the peace ('BOTP') means (if anything), breach of the criminal law. Further, reference to a magistrate (or judge) is more appropriate and intelligible than to a 'justice of the peace' which title should now be dispensed with in legislation;* Criminal Offence. BOTP was never - even from Anglo-Saxon times - a criminal offence in itself. 3 Instead, it referred to any offence which - if not punished - would provoke a blood feud (faida);* Frankpledge & Hue & Cry. These common law obligations - long obsolete - should be abolished;* Justices of the Peace Act 1361. This Act is spent - including the right of JP's to bind over for good behaviour. It should be repealed since the Magistrates' Courts Act 1980 now covers all (non-obsolete) matters referred in the former;* Magistrates' Courts Act 1980, s 1(7). This section should be amended to exclude reference to binding over for 'BOTP' and for 'good behaviour'. Instead, to make it more intelligible in modern times, it should refer to the power to bind over where a person: (a) has committed a crime; or (b) threatened to commit a crime; or (c) incited another to commit a crime;* BOTP- Duty of Constable. The common law duty of a constable to prevent 'breaches of the peace' should be replaced by a statutory duty, requiring a constable to 'do his best to prevent the commission of crime' (following Watkins LJ in Howell);* Citizen - Arrest without Warrant. This common law power should be abolished since the Police and Criminal Evidence Act 1984 ('PACE 1984'), s 24A now adequately covers matters;* Constable - Arrest without Warrant. This common law power should be abolished since the PACE 1984, s 24 now adequately covers matters (or should be slightly amended to do so). Further, this section should be amended to also cover where a constable does not arrest as such but 'restrains' or 'detains' or 'removes' a person, since these acts are often part of arrest or closely connected to it;* Constable - Entering Private Premises. This common law power should be abolished since the PACE 1984, s 17 adequately covers matters (or should be slightly amended to do so);* Criminal Legislation. All criminal legislation should be consolidated into 4-5 Acts - in order to help JP's with their work and to make the law more accessible and efficient;* Courts Legislation. Legislation relating to magistrates' courts should be consolidated - along with that relating to the other courts - into one Act (with obsolete courts being abolished and others merged). This, in order to made the court system more efficient and intelligible;* More Stipendiaries. JP's should now be professional lawyers - given the increasing complexity of the criminal law and the need to ensure the greatest prospect of justice being secured. …