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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 Roman magistrate was one of the highest ranking government officers, and possessed both Judiciary and executive powers. In other parts of the world, such as China, magistrate is a word applied to a person 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 are typically trained volunteers appointed to deal with criminal and civil matters in their local areas.
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.
In France and Italy, and several other European countries, examining magistrate judges have represented the victim and are part of overseeing investigations from the beginning of a case, in consultation with police and prosecutors. In France they are titled investigative judge ( juge d'instruction, "judge of inquiry"). Italy and some other nations have ended this practice.
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") is a state-appointed local administrative office whose responsibilities include keeping Civil registry, acting as a Notary public and conducting civil marriages.
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.
All criminal cases begin in a magistrates' court. The most serious cases (for example murder, rape, etc) are sent to the Crown Court, although magistrates' will often decide on issues such as bail and any preliminary matters. Lesser offences, including all summary only offences and some either-way offences will be dealt with entirely in the magistrates' court. A wide range of other legal matters are within the remit of magistrates, such as matters relating to licensing and debt collection, for example. In the past, magistrates have been responsible for granting licences to sell alcohol;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) this function is now exercised by local councils, although there is a right of appeal to the magistrates' court. Magistrates are also responsible for granting orders such as search warrants to the police and other authorities. It used to be a requirement that they live within a 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 , 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 in England and Wales: Justices of the Peace, and District Judges (formerly known as stipendiary magistrates). Justices of the peace (JPs) are trained volunteers appointed from the local community; the nature of their role means that it is not necessary for them to be legally qualified, but they do have the assistance of a legally qualified adviser in Court. JPs require intelligence, common sense, integrity, and the capacity to act fairly. They are selected by a local advisory committee and only recommended to the Lord Chancellor for appointment if they can demonstrate the six key qualities required of a judicial office holder, these are: (a) good character, (b) commitment and reliability, (c) social awareness, (d) sound judgement, (e) understanding and communication and (f) maturity and sound temperament. Membership is widely spread throughout the area covered and drawn from all walks of life. Police officers, , RSPCA employees and certain other categories of employees, as well as their close relatives, will not be appointed, nor will those convicted of certain criminal offences including recent minor offences.
All new justices of the peace undergo comprehensive training before sitting. There is a mentoring programme to help guide new appointees (mentors are magistrates with at least three years' service). The training, delivered by the Judicial College, covers the necessary law and procedure required for their role. They continue to receive training throughout their judicial career, and are appraised every four years (every two years for a Presiding Justice) to check that they continue to remain competent in their role. Additional training is given to justices choosing to sit in the Youth Court or those dealing with family matters. New JPs sit with mentors on at least six occasions during their first eighteen months. Justices of the peace are unpaid appointees, but they may receive allowances to cover travelling expenses, subsistence and loss of earnings for those not paid by their employer while sitting as a magistrate, up to a maximum of £116.78 a day. A justice of the peace may sit at any magistrates' court in England and Wales, but in practice, they are appointed to their local bench (a colloquial and legal term for the local court). Justices of the peace will normally sit as a panel of three, with two as a minimum in most cases, except those cases dealt with under the single justice procedure. Many are members of the Magistrates' Association, which provides advice and training and also represents magistrates.
The other type of magistrate is known as a district judge (magistrates' courts). Unlike justices of the peace, district judges (magistrates' courts) usually sit alone, although still have the benefit of a legal adviser. They are paid Judges appointed by open competition through a process administered by the Judicial Appointments Commission (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, however the criminal procedure rules do require some cases to be heard by a district judge, such as those matters relating to extradition or where the contested issue is a disputed point of law.
According to the official statistics for diversity of the judiciary in April 2021, 56% of sitting magistrates were women, 13% were Black, Asian and minority ethnic and 82% per aged above 50.
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, child custody or, and contact with or 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''
Annual Report of the Federal Magistrates' Court 2004/2005'', PART THREE: PERFORMANCE). 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". Federal Attorney-General's announcement
The jurisdiction of the magistrates varies from state-to-state. They preside over courts which are, depending on the state, called magistrates' courts, Local Court, 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 offence, 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 ) 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 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 Honour" in any event. It is also acceptable to address a magistrate simply as Sir or Madam.
There are four classes of judicial magistrate (chief metropolitan magistrate in metropolitan areas and chief judicial magistrate in other areas, magistrate of the first class, metropolitan magistrate in metropolitan areas), magistrates of the second class and magistrates of the third class.
Every administrative district has the following executive magistrates:
The chief judicial magistrate CJM (including additional chief judicial magistrates) hear all types of criminal cases. All magistrates' courts are controlled by the CJM. who 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 for up to seven years and impose fines up to any amount. The CJM is the most senior magistrate in their district.
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 imprisonment for up to three years and impose a fine of up to . Judicial magistrates can try criminal cases.
A judicial magistrate of first class (also known as judicial first class magistrate) can sentence a person to jail for up to three years and impose a fine of up to .
There are, in each revenue district (as opposed to a sessions district) the following kinds of executive magistrates:
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/sub divisional officers are appointed as the SDMs. and deputy/additional tehsildars are appointed as executive magistrates.
In some metropolitan areas, the government has conferred specific or full powers of an Executive Magistrate upon Police Commissioners and their deputies within the police commissionerate system.
The BNSS, 2023 ( Section 15) allows state governments to appoint "Special Executive Magistrates." These can be either existing Executive Magistrates or senior police officers (Superintendent of Police or higher). They are appointed for specific areas or duties and are granted certain powers of Executive Magistrates, as determined by the state government. Their appointment is for a term decided by the state.
Under the old CrPC, there was no distinction between the executive and judicial magistrates and some states still follow the old CrPC.
In the late 1990s, a position of community magistrate was created for District Courts on a trial basis. A community magistrate sits in the hierarchy just below a district court judge. They only have criminal case jurisdiction. They are lay judicial officers, not needing to hold a law degree, although many do.
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 , etc. 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." 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" (19 December 1799).
After losing the Chinese Civil War, county magistrate elections in the Republic of China 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. The magistrates became the first level head of government after the central government reduced provincial powers in 1998. In the People's Republic of China, the county leader is elected by the local people's congress but the process is controlled by the Communist Party.
The magistrates are the only judges of the regional level within the judiciary of Russia. All other courts, including the district courts, are federal, as they are financed from the federal budget and their judges are appointed by the president of Russia, while the magistrates are financed from the regional budgets and are usually appointed by regional legislatures or elected by the population of a judicial district.
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