Magistrate
|
|
A magistrate is a judicial officer with limited authority to administer and enforce the law. A magistrate's court may have jurisdiction in civil or criminal cases, or both.
| Contents |
In England and Wales
In the English and Welsh legal system, magistrates hear prosecutions for and dispose of summary offences, by making orders in regard to and placing additional requirements on offenders. Magistrates' sentencing powers are limited, but extend to shorter periods of custody, fines, probation and community service orders, and a miscellany of other options. Magistrates hear committal proceedings for indictable offences, and establish whether sufficient evidence exists to pass the case to a higher court for trial and sentencing. Magistrates have power to pass summary offenders to higher courts for sentencing when, in the opinion of the magistrate, a penalty greater than can be given in magistrates court is warranted. A wide range of other legal matters are within the remit of magistrates, such as certain licensing matters. In the past, magistrates have been responsible for granting licences to sell alcohol, for instance, but this function is currently being shifted to local councils.
There are two types of magistrate in England and Wales: lay magistrates and legal professionals permanently employed by the Department for Constitutional Affairs. The first group, known as Justices of the Peace, sit voluntarily on local benches (a colloquial and legal term for the local court), hearing lesser matters, and are provided with advice, especially on sentencing, by a legally qualified Court Clerk.
The second group, professional magistrates, are nowadays known as District Judges, although hitherto they were known as Stipendiary Magistrates (which is to say, magistrates who received a stipend or payment). District Judges have the authority to sit in any magistrates' court (or, in legal parlance, on any bench). Under European legislation with force in England and Wales (by Act of Parliament), certain sentences may be passed only by paid magistrates and not by their lay colleagues.
In Scotland, the lowest level of law-court is presided over by a Sheriff.
In Continental Europe
Under the civil law systems of European countries such as Italy, Spain and France, "magistrate" is a generic term which comprises both prosecutors and judges. 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. Anti-corruption magistrates (they actually were, or are, public prosecutors) in Italy have in recent years played a key role in fighting criminal organizations such as the Mafia. Antonio di Pietro, Paolo Borsellino and Gherardo Colombo are among the most famous, as was Giovanni Falcone, who was murdered in 1992 by a Mafia bomb in Palermo. The bomb also killed his wife and three bodyguards, and galvanized Italian public opinion against the Mafia.
In the United States
Magistrates are somewhat less common in the United States than in Europe, but the position does exist in some jurisdictions.
The term "magistrate" is also used (chiefly in judicial opinions) as a generic term for any independent judge who is capable of issuing warrants, reviewing arrests, etc. 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.
Federal judicial system
In the United States federal court system, 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 handle lesser criminal cases, arraignments, and certain kinds of civil cases. Felonies are typically handled by district judges, as are civil jury trials unless all of the parties to a case agree that the magistrate judge may preside over it. All decisions of a magistrate judge are subject to review and approval, modification or reversal by a district judge of that court, except in civil cases where the parties consent in advance to allow the magistrate judge to exercise the jurisdiction of the district judge.
Magistrates didn't exist in U.S. federal courts until 1968, when the office of "United States commissioner" was restructured and renamed to allow district judges to focus on major cases, with lesser matters handled by magistrates. Magistrates' titles changed again in 1990, when they became "magistrate judges," symbolizing the ever-increasing importance of their work. The system has worked relatively well in the last 30 years, and has tended to shift the Federal courts' caseload to the desired balance. Some legal observers have criticized the increasing powers of magistrate judges, who are neither appointed by the President of the United States nor confirmed by the United States Senate. Nevertheless, with the caseload of the Federal courts increasing steadily, it is likely that magistrate judges will continue to wield considerable authority.
State judicial systems
In many state judicial 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.
In Ohio, for instance, magistrates are appointed by the judges of many larger municipal, domestic relations and juvenile courts, and some common pleas courts. Such magistrates do virtually everything judges do. As in the federal courts, their actions are subject to review and approval, modification or reversal by judges of their court.
In Georgia, on the other hand, each county has a chief magistrate, elected by the voters of the county, who has the authority to hold preliminary hearings in criminal cases, grant bail (except as to very serious felony charges), and preside over a small claims court for cases where the amount in controversy does not exceed $15,000. In some counties the chief magistrate may be authorized to appoint one or more additional magistrates to assist in carrying out the chief magistrate's duties. Magistrates in Georgia are not required to be licensed attorneys, but they often are. Some counties have both attorneys and non-attorneys on the magistrate court bench.
In China
Magistrate, or chief magistrate, is also a common Chinese translation of xianzhang (縣長 "county leader") the political head of a county. 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.
On Taiwan, 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.
In Mainland China, the county magistrate 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 magistrates, particular 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 New Zealand
The position of stipendary 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.
Etymology
Derived from Middle English word "magistrat" from Old French, from Latin "magistratus", from magister; magistr-, meaning "master".