» Part One - Summary of responses related to questions posed in the consultation paper
» Part Two
» Working towards a national framework
» Impact of responses
on Access to Justice Act 1999
» Added impact
of delegated powers of the single justice
» Professional legal
advisors . court clerks
» Strategic Steer - core job description
rather than . clerkship. model
» Core job description for justices.
clerks
» Part Three - Outstanding Issues
» Possible legislative change of
titles
» Possible amendment to the Lord
Chief Justice. s practice direction on the role of the magistrates. clerk.
» Annex A - Models of where the Justices' Clerks Fit
» Annex B - The Role of the Magistrates. Clerk
Last year Ministers promised to follow up on the consultation paper . The Future Role of the Justices. Clerk..
This final paper provides: a summary of the responses to the earlier consultation exercise; identifies the work done so far; and sets out the strategic steer Ministers now propose and the work that needs to be done to fully implement that steer.
This paper is divided into three sections:
summary of responses to the earlier paper;
areas addressed so far working towards the national framework whilst retaining some flexibility for local decision making; and
the steer we now propose and with an opportunity for final comments on the one outstanding issue.
Strategic Steer
The Access to Justice Act 1999 provided an opportunity to adopt an incremental approach to the giving of a strategic steer. In particular this was assisted by the change of emphasis of the justices. chief executive and justices. clerk roles. The implementation of s88 (Role of the justices. chief executive) and 89 (Independence of clerks and staff exercising legal functions) afforded a staged approach to a greater separation of the legal/ administrative functions. The transfer of functions to justices. chief executives is currently planned for April 2000.
In light of the responses received earlier, Ministers are convinced that the strategic steer should be that a justices. clerk is to be the professional legal advisor to justices i.e. Ministers accept that the . model. adopted should primarily be that of a core job description rather than based on the model of . clerkship. . This leaves the details of the extent to which justices. clerk should remain responsible for daily administrative/ managerial duties to each individual MCC. However Ministers expect the core functions to account for a great majority of a justices. clerks time. This step is taken in the light of Ministerial policy on the greater separation of legal/ administrative functions, the increased responsibility in the exercise of the powers of the single justice, and the increased responsibilities in relation to both the legal forum (consistency of legal advice) and the local responsibilities for steering the professionalisation of court clerks, as appropriate.
This paper also includes:
a review of the one outstanding issue from the consultation paper; e.g. liaison with Lord Chief Justice on the practice direction for in-court/retiring room duties; and
a short discussion on the possibility of legislative change of title, finally accepting that the use of other titles is permissible so long as the existing legislative references of justices. chief executive and justices. clerk are retained. These are all encompassing titles which serve a useful purpose today and which would take a further legislative slot in Parliament to amend.
If you would like to comment on the question of an amendment to the Lord Chief Justice. s Practice Direction on the Role of the Magistrates. Clerk 1981 (Blackstone. s Criminal Practice pages 1484-1487), please send your responses by Thursday, 29 February 2000*** to the following address:
Further copies of the paper can be obtained from the above address, or request by fax to 0171-210 8681.
When responding it would be helpful if you would explain who you are and, where relevant, who you represent.
Please ensure that you mark your response clearly if you wish your name or the contents of your response to be kept confidential. Otherwise your name and the general contents of your response may be made public following a request under the Open Government Initiative.
*** There will, of course, be a period of analysis of the responses. Should a late representation be received before that analysis is complete it will be included. However, we are unable to extend this deadline.
(A) The irreducible core functions of a justices. clerk.
Is the list of functions the irreducible core of the legal/judicial tasks? If not, which functions should be added or deleted, and why?
The general feeling was that the core had been reduced too far. There should be room for additional functions e.g. the pastoral role with the magistrates, responsibility for listing, enforcement and case management. Most people felt that the justices. clerk should also be an active member of the legal forum. None said that any task should be deleted from the list.
Is it helpful for the national framework to include such a list of functions?
The majority said that it would be helpful, otherwise the exercise is pointless. However, the framework should be adaptable and flexible. MCCs should retain their discretion to narrow/or extend the functions to suit the needs if the area i.e. that it should be broad enough to encompass the requirements of urban, rural and mixed MCCs.
Are there functions of the justices. clerk office holder that must be carried out personally by him/her? If so, what are they and why must they never be delegated?
Most agreed that the majority of functions could be delegated. There are, however, a handful of functions which best remain with the justices. clerk. For example: the role of arbiter when giving advice/second opinion to magistrates following advice from a court clerk; the mentoring role in relation to how magistrates present themselves; and personal attendance at annual bench meetings.
(B) Where do justices. clerks fit?
Observations invited on illustrated Models, A, B or C or variants (see Annex A).
Commentary on the effectiveness of the organisational structure adopted by individual MCCs.
Should we adopt as the national guideline any of these Models?
Opinions on the three models were split. Slightly more than half of the responses from MCCs (28) felt that there is still a place for Model A. Of the rest, Model B came second with 24. The majority of responses felt that there was no place for Model C. Comments such as . extreme. and . unacceptable. were prominent. However, three MCCs felt that model C might work but there was a risk to judicial independence. One MCC suggested that it could work if the JC was employed on a fixed term contract and may facilitate consistent legal advice
Concern was expressed that no particular model be imposed. MCCs should retain some flexibility. The majority of MCCs felt that no one model should be adopted as a national standard.
Responses to the three suggested MCC staff structure models:
(C) The justices. clerk as lawyer/manager?
In light of Ministerial policy on the clearer separation of functions, is there a place for Model A (status quo . traditional remaining the lawyer/manager), given the extent of managerial/administrative duties this imposes on justices. clerks?
A number of MCCs feel that there is still a place for model A. However, many accepted that in light of the Government. s thinking on the greater separation of legal/administrative functions, those areas still using model A should be progressing towards model B.
(D) A chief justices. clerk?
Should there be a chief justices. clerk? If so, should his/her duties be defined?
Are there any other approaches which would lead to a "chief" justices. clerk in addition to the two described which you would favour?
The majority of respondents felt that this post was an unnecessary additional tier. It would contradict judicial independence and there would be a misunderstanding of where authority lies.
(E) Statutory responsibilities of office holder
Which [if any] of the statutory functions listed at Annex B should be for the justices. clerk to decide to whom to delegate?
Many of the respondents did not address this issue. They felt that the greater separation of legal/administrative functions is a substantial exercise. Time did not permit them to comment.
The majority of those who did respond agreed that those functions that are solely administrative could be transferred to the justices. chief executive. However, the justices. clerk should retain any functions that need a legal opinion. Some MCCs said that if the justices. chief executive is not legally qualified, he should not be able to influence any legal functions.
There is still some discrepancy over the lines of accountability locally. Most agreed that the justices. clerk is accountable to the justices. chief executive for the effective performance of duties. However, a typical comment was that this is easy to ensure when measuring the effectiveness of listing systems, waiting times, etc. Some MCCs felt that responsibility for the listing of individual cases, as a judicial matter, remains a grey area.
In light of the responses received a number of points were effected in the Access to Justice Act 1999 whilst the legislative opportunity existed. It may be a number of years before such an opportunity arises again. For example, it was three years before we could consolidate the Justices of the Peace Act 1997 and the Police and Magistrates. Courts Act 1994 into the Access to Justice Act 1999. To this end the Access to Justice Act 1999 contained provisions directly in line with responses to the consultation paper on justices. chief executives, justices. clerks and staff.
Ministers are convinced that the primary function of justices. clerks must continue to be the giving of legal advice to lay magistrates. The Government published a consultation paper about the functions of justices. clerks ( The Future Role of the Justices. Clerk Lord Chancellor. s Department, September 1998).
New provisions in the Act about the qualifications and functions of justices. chief executives are intended to clarify both their role and the lines of accountability between the justices. chief executive, the MCC and the other staff of the MCC. In practice these provisions will:
facilitate a greater separation of the legal and administrative functions carried out by justices. clerks and justices. chief executives;
transfer the role of the justices. clerk as . collecting officer. - an administrative function . to the justices. chief executive;
pass the MCC. s duty to determine administrative procedures to the justices. chief executive;
ensure that under the new management structure, the justices. chief executive will be able to delegate any administrative function to any member of staff, including the justices. clerk, depending on local needs; and
mean that the justices. chief executive is no longer required to be legally qualified.
Section 87: Qualification for appointment as chief executive.
This section, by repealing section 40(5) of the JPA 1997, removes the requirement that justices. chief executives be qualified barristers or solicitors. The intention is to enable MCCs to attract the best possible applicants, including specialists in management and administration. The provision does not compel MCCs to appoint a person who is not a qualified lawyer.
Section 88: Role of chief executives.
This section substitutes a new section 41 of the JPA 1997. The new section 41 states that the justices. chief executive shall make arrangements and determine administrative procedures, thus clarifying the responsibility for ensuring the effective and efficient administration of the magistrates. courts within the area of the MCC, and the lines of accountability between the MCC, justices. chief executive and other employees of the MCC.
Section 88(2) effectively repeals previous s 31(2) of the JPA 1997. The justices. chief executive will be required to carry out his or her functions in accordance with any directions given by the MCC. The justices. chief executive will be able to give directions to justices. clerks and other staff about how they should carry out their administrative functions; but this power does not extend to legal functions (see the commentary below on section 89).
Section 88(4) amends section 61 of the JPA 1997 to allow the Lord Chancellor to pay compensation in cases of default by a justices. chief executive (in addition to default by a justices. clerk or other staff).
Section 89: Independence of clerks and staff exercising legal functions.
This section confirms the independence of justices. clerks in the exercise of their legal and judicial functions.
Section 89(1) substitutes a new section 48 of the JPA 1997 to clarify the range of functions in respect of which the justices. clerks are not subject to direction by the JCE or anyone else. The new section 48 applies to:
the function of advising magistrates about the law; and
any function also exercisable by magistrates; and
The new provision is wider than the original section 48 in two respects. First, it covers judicial functions conferred on justices. clerks directly by statute, while the current section applies only to functions exercisable by a single justice delegated to justices. clerks or other staff by rules. Second, it is not limited to legal advice about individual cases.
Section 89(2) amends sections 45(4) & (5) of the JPA 1997 to make clear that advice about the law includes matters of legal procedure and practice.
[NB: s87 . 89 commencement . 27 September 1999]
Section 90/Schedule 13: Transfer of clerks. functions to chief executives.
Section 90 gives effect to Schedule 13 which amends a large number of earlier Acts so as to transfer to justices. chief executives administrative functions imposed by those Acts on justices. clerks. Section 90 also empowers the Lord Chancellor to transfer to justices. chief executives, by order, any other administrative functions that may be identified in future. These provisions facilitate the greater separation of responsibilities for legal and administrative functions in magistrates. courts, enabling justices. clerks to concentrate on their legal and judicial functions.
Section 91: Accounting etc. functions of chief executives.
This section deals with the collection, banking and disposal of, and accounting for, monies received by justices. chief executives. New section 41A of the JPA 1997 transfers the functions of justices. clerks as . collecting officers. to justices. chief executives. When this section is brought into force, justices. chief executives will be accountable for the collection of fines and fees.
In order to raise the standards of accounting practice and financial management in magistrates. courts, section 91 introduces new accounting requirements in respect of all monies passing through magistrates. courts, irrespective of to whom they are payable. It adds a new section 60A to the JPA 1997, giving the Lord Chancellor power to make regulations in three areas:
the times and manner in which justices. chief executives must pay monies, due to the Lord Chancellor or anyone else;
the keeping, production, inspection and audit of the accounts of justices. chief executives in respect of any money they receive (apart from their salaries and expenses); and
the banking arrangements which may be used by justices. chief executives.
This major change will affect the Justices. Clerks Accounting Manual, which will be replaced. Resources Branch of the Magistrates. Courts Division will produce a new accounting manual for Justices. Chief Executives. Further information will be forthcoming over the next few months.
[NB: S90-91 commencement . to be announced]
Re-Inforcing The Legal Function Of Justices. Clerks
As the principal legal advisor, development for justices. clerks has traditionally fallen to two areas: furtherance of management skills as a justices. chief executive; or of the legal skills towards judicial decision making e.g. stipendiary magistrate, Assistant Recorder, etc.
This will not change, although the choice of path may come at an earlier stage now, if additional vocational training is desired. Management skills are not rehearsed here as the vast majority of justices. clerks are more than familiar with the requirements for development. However, two examples of additional development on the legal side are cited as they reinforce the Government. s view of professional legal advisors to lay magistrates and the benefits of full-time judiciary where the greatest need arises.
In addition to the changes made by the Access to Justice Act 1999 on the general scope of the administrative functions of a justices. clerk, section 49 of the Crime and Disorder Act 1998 increased the potential for case management by justices. clerks when it re-examined the powers to be exercised by a single justice sitting alone.
The powers may be delegated to individual justices. clerks. Prior to this, the Lord Chancellor consulted magistrates and justices. clerks.
There were several pilot schemes from October 1998 to April 1999 on the delegation of certain case management powers.
As a result of both the consultation and the pilot schemes, the Lord Chancellor decided to approve amendments. The Justices. Clerks Rules 1999 now compliment section 49 of the Crime and Disorder Act 1998. The decision to implement the powers has been left to local areas. This means that clerks can exercise greater case management powers than previously.
In addition to this, following representations from the Magistrates. Association and other representative bodies, during the passage of the Access to Justice Act (AJA) 1999, amendments were made to the clauses that had been proposed originally. These include: slightly reduced powers of delegation; an expanded definition of the role of the justices. chief executive [s41 of the Justices of the Peace Act (JPA) 1997, as amended by s88 of the AJA 1999]; and a much clearer definition of the independence of clerks and staff exercising legal functions [s48 of the JPA 1997, as amended by s89 of the AJA 1999].
Ministers are determined that magistrates are afforded the best possible advice. This means, of course, a change in emphasis for justices. clerks and their legal teams. A change from the wider responsibilities of general management to a greater case management role in the courtroom. In addition, one of the effects of s88 & s89 means an expanded responsibility for justices. clerks to engage in a local Legal Forum to promote greater consistency of legal advice and support to magistrates.
These changes will be bolstered by the moves towards all court clerks being professionally qualified.
• Background
In August 1998 it was announced that from 1st January 1999, all court clerks in the magistrates. courts would be required to qualify as either a barrister or a solicitor of the Supreme Court. After careful consideration of the impact this decision would have on the magistrates. courts and individuals, it was decided that those existing court clerks who were 40 years old or older on 1 January 1999 would not be required to qualify. The Statutory Instrument was made on the 10th December 1998.
The type and timing of the training to be undertaken by court clerks depends on their existing qualifications. This will range from those who need to take a full Common Professional Examination and a Legal Practice Course down to those who have to take only the Legal Practice Course.
• Summary
Achieving a fully professionally qualified service will:
ensure magistrates. courts are equipped to handle the new responsibilities and future changes as they emerge over the coming years;
continue to ensure that magistrates have high quality legal support and that those involved in the criminal justice system has confidence in the qualification and status of those advising magistrates.
NB: The requirement to qualify has been amended to take account of representations received e.g. there is a period of up to ten years to allow people to qualify, subject to the time limits of the professional bodies. The support package includes one day off per study week
• Judicial Development
Whilst the post of justices. clerk is not a judicial one, in addition to the greater case management role, justices. clerks were confirmed as eligible for appointment as Acting/Stipendiary Magistrates, Assistant/ Recorders and Circuit Judges in 1996.
They are obviously well placed to understand the work and approach required, although they will also need to satisfy an interview panel that they can see life beyond the courts. The fact that 25% of stipendiary magistrates (24 out of 96) were formerly justices' clerks shows that they are often able to do this.
Applications from justices. clerks are also welcome for a variety of tribunal appointments. A number of justices. clerks already serve successfully as part time legal chairmen in these posts.
NB: It is important for any applicant to clear with his or her MCC in advance that they can be released for the appropriate time for this work - the minimum commitment is 20 days in any year.
Background
As set out earlier, the responses received made it plain that one prescribed model for the provision of justices. clerk(s) in an MCC area is not desirable. Indeed given the variations in the size and business of MCCs it may prove unworkable. Ministers are, however, still firmly committed to a national framework of common elements for magistrates. courts committees throughout England and Wales.
Strategic Steer
Ministers have decided that the best way forward is to establish a single core job description for justices. clerks. This forms the next step on the path to a national framework. Ministers have decided not to impose an organisational model as a national standard.
Building on the established policy of greater separation of the administrative and legal functions, s90 & s91 of the Access to Justice Act 1999 provide for the transfer of the accounting and administrative functions from the justices. clerk to the justices. chief executive. Justices. clerks should focus on the giving of legal advice and other associated duties.
Of course a justices. chief executive may still delegate specific duties to others whilst retaining accountability, just as a justices. clerk did in the previous . clerkship. system. That is not to say that . clerkship. models will not continue in some form, as may be applicable locally. Ministers anticipate, however, that the traditional definition of a . clerkship. will gradually disappear with the transfer of accounting functions and the resulting change to lines of accountability and local administrative structure. (. Clerkship. was the descriptor of the number of justices. clerks accounts for individual petty sessions areas held by a single person.)
The single core job description will, of course, take on increased importance with the advent of larger MCCs, as the onus is on the justices. chief executive to liaise directly with the heads of the other criminal justice agencies locally.
Attached is a copy of the list of core functions agreed by Ministers. This is to form the irreducible core of a justices. clerk. s job description. You will note this has changed slightly from the earlier version, in light of representations received and the changes arising from the Access to Justice Act 1999 and the Crime and Disorder Act 1998.
Whilst not wishing to be too prescriptive on the finer details of an individual. s job, Ministers will expect the core functions to account for the great majority of a justices. clerk. s time. Other duties might include responsibility for analysis/interpretation of the MCC. s legal business and/or Advisory Committee liaison.
directly accountable to the justices. chief executive for the quality of the legal services provided in his/her area;
the principal legal adviser to the magistrates in his/her area;
continued guarantee of independence in relation to legal functions in accordance with section 48 of the JPA 1997, as amended by s89 of the AJA 1999;
manager, appraiser and mentor of court clerks [courtroom team];
responsibility for training of court clerks [courtrooms team], though not necessarily the trainer;
responsibility for ensuring MCC is advised when magistrates require training, though not necessarily the trainer;
Legal Forum duties e.g. establish consistent legal advice throughout the MCC area; e.g. development of consistent listing policy for entire MCC area with justices. chief executive;
exercise of any of the powers of a single justice and statutory functions; to include responsibility for further delegation of any of those functions;
responsibility for support to benches in their wider role and legal responsibilities e.g. co-ordinating independent responses to consultation on strategic change, selection of new justices. clerks or bench selection procedures; and
directly accountable for ensuring that the standards set by the Committee for the entire area are met in relation to legal services in his/her area.
Outstanding Issues
From the earlier responses we were left with two outstanding issues:
the possibility of legislative change of the titles justices. chief executive and justices. clerk;
an amendment to the Lord Chief Justice. s Practice Direction on the Role of the Magistrates. Clerk 1981 (Blackstone. s Criminal Practice pages 1484-1487).
This was discussed at length with representative bodies during the passage of the Access to Justice Act 1999 who felt that the titles do not accurately reflect the exact nature of the job undertaken. Unfortunately with no time for consultation this could not be included at that time. However it is now generally agreed that even if a further primary legislative opportunity arises, it is virtually impossible to replace the single legislative title for each post with another that is more representative.
It was, therefore, agreed that the existing single legislative references of justices. chief executive and justices. clerk should be retained. This is, however, with the proviso that it is acceptable to use other titles locally as long as the correct title was used when advertising posts, etc.
Both the Lord Chief Justice and the Lord Chancellor received representations. These amount to a single issue i.e. that clearer guidance is given on the role of the clerk. Both support this in principle but would be glad of comments to ensure we capture as many concerns as practicable.
First, in line with Human Rights legislation, further advice needs to be incorporated to stress: (i) the importance of giving advice to magistrates in open court; and (ii) where advice is given in the retiring room the parties must then be informed of the advice s/he has given and be given an opportunity to comment. Guidance will also be required, for example:
on the role of the clerk when assisting unrepresented defendants in court in identifying Human Rights issues and at the pre-court stage in assisting defendants with the completion of legal aid forms where there may be a Human Right issue; and
in enforcement proceedings to clarify the role of the clerk as complainant on behalf of the executive and advisor to the bench.
Second, the same points were made with the additional comment that clerks should not make decisions on any case without reference to the bench. The example cited here was of a clerk agreeing an adjournment on one case from the list without reference to the bench, whilst the bench were in the retiring room deciding another case.
| The recent amendment to the Justices. Clerks Rules 1999 has helped to clarify the powers that may be delegated to a justices. clerk in place of those to be exercised by a single justice sitting alone. However we would be pleased to receive any comments you may wish to make before taking forward a separate amendment to the Lord Chief Justice. s Practice Direction. |
Model A
Model B
Model C
Introduction
D18.29
The qualifications and appointment of justices. clerks are described at D2.23. There is a distinction between clerks in the strict sense of the word (of whom there is normally only one per petty-sessional division) and the deputy and assistant clerks who form part of the staff provided for him by the magistrates. courts committee. Provided and assistant clerk has certain minimum legal qualifications, he may sit as a clerk in court even though he neither has a law degree nor is qualified as a barrister or solicitor. The function of a clerk in court is the same whether he be an assistant clerk or the actual clerk to the justices, although an assistant clerk may and ought to seek assistance from the clerk if a point of difficulty arises on which the assistant does not feel qualified to advise the magistrates.
A clerk or other member of staff of a magistrates. courts committee must perform his legal functions independently. He is not subject to the directions of the committee or the justices. chief executive when performing such legal functions, e.g., giving advice to the justices (Justices of the Peace Act 1997, s48)
Duties of Clerk with respect to Question of Law
D18.30: Practice Direction (Justices: Clerk to Court) [1981] 1 WLR 1163
A justices. clerk is responsible to the justices for the performance of any of the functions set out below by any member of his staff acting as court clerk and may be called in to advise the justices even when he is not personally sitting with the justices as clerk to the court.
It shall be the responsibility of the justices. clerk to advise the justices as follows: (a) on questions of law or of mixed law and fact; (b) as to matters of practice and procedure.
If it appears to him necessary to do so, or he is so requested by the justices, the justices. clerk has responsibility to (a) refresh the justices. memory as to any matter of evidence and to draw attention to any issues involved in the matters before the court, (b) advise the justices generally on the range of penalties which the law allows them to impose and on any guidance relevant to the choice of penalties provided by the law, the decision of the superior courts or other authorities. If no request for advice has been made by the justices, the justices. clerk shall discharge his responsibility to the court in the presence of the parties.
The way in which the justices. clerk should perform his functions should be stated as follows. (a) The justices are entitled to the advice of their clerk when they retire in order that the clerk may fulfil his responsibility outlined above. (b) Some justices may prefer to take their own notes of evidence. There is, however, no obligation on them to do so. Whether or not they do so, there is nothing to prevent them from enlisting the aid of their clerk and his notes if they are in any doubt as to the evidence which has been given. (c) If the justices wish to consult their clerk solely about the evidence or his notes of it, this should ordinarily, and certainly in simple cases, be done in open court. The object is to avoid any suspicion that the clerk has been involved in deciding issues of fact.
[5. Confirms that Practice Note (Justices. Clerks) [1954] 1 WLR 213 remains in force]
It will be apparent from para. 2 that the role of the clerk is to advise on law, practice and procedure. Since the magistrates are the ultimate arbiters of both law and fact there is no obligation on them to adopt the clerk. s advice on law, but it is accepted practice that they do in fact do so. Thus in Jones v Nicks [1977] RTR 72 Lord Widgery CJ strongly criticised magistrates for rejecting the clerk. s advice that mitigation advanced by a motorist in respect of the offence of speeding could not amount to special reasons for not endorsing his licence. His lordship said: . Justices really must accept legal advice from their clerk in circumstances like this; if they do not, all that happens is that a great deal of time and money is wasted in bringing the matter up here to be put right..
When a point of law arises during the course of proceedings, the magistrates normally take the initiative and ask the clerk for his advice. It is submitted that the advice should be given in open court. Certainly, should a point arise on which the magistrates do not ask for advice but nonetheless the clerk considers that it his duty to proffer some, it is expressly stated by para. 3 of the practice direction that he . shall discharge his responsibility in court in the presence of the parties. . Ex hypothesi, when the advice is expressly sought, the parties . and, indeed, the public . should know what the clerk is telling his bench. In Chichester Justices, ex parte DPP [1994] RTR 175, a clerk who had not been present in court when legal submissions were made was asked to advise the justices on points of law arising from the case; the Divisional Court stressed that in such a case he should hear submissions from both parties in open court before advising. See also Moss v Jenkins [1975] RTR 25, where the Divisional Court suggested that magistrates who, in retirement, had taken for themselves a technical point of law relating to a drink-driving charge would have been better advised to have returned to court for the point to be argued before them by the advocates with the clerk openly advising.
Advice on law will certainly include advice on the elements of the offence charged and on questions of admissibility of evidence. The extent to which the clerk, may properly advise on sentencing (for example, by reminding the magistrates of a decision of an appellate court indicating that a custodial sentence ought to be imposed for a particular type of offence) is more problematic. There is a danger that, in drawing attention to a . guidelines. decision of the Court of Appeal, the clerk may seem to be advocating a certain type of disposal and thus interfering with a decision which ought to be for the bench alone. On the other hand, the practice direction does state that the clerk. s responsibility is not only to advise on the range of penalties allowed by the law but also to refer to any guidance on choice of penalty given by, inter alia, . the decision of the superior courts. . Practice Note (Justices. Clerk) [1953] 1 WLR 1416 further states that the clerk may inform the magistrates of the level of sentence imposed by their own or neighbouring benches for comparable offences. Most clerks deliver any advice they have on sentence privately after the magistrates have retired, rather than in open court, although the practice is not uniform.
Clerk to Play no part in Decisions on Questions of Fact
D18.31
The clerk must not advise on or try to influence the magistrates. decision as to the facts (see Practice Note (Justices. Clerks) [1953] 1 WLR 1416, which states that . In no circumstances...may justices consult their clerk as to the guilt or innocence of the accused so far as it is simply a question if fact. ). Contravention of the rule may lead to judicial review of the court. s decision (see, for example, Stafford Justices, ex parte Ross [1962] 1 WLR 456 - conviction quashed because, while R was giving evidence in his own defence, the clerk handed the bench a note which argued the evidence ought not to be believed.
Retirement of Clerk with the Bench
D18.32
Partly as a corollary of the rule that the clerk must not be a party to factual decisions, he should not retire with the magistrates when they consider their verdict unless either he is asked to do so (whether at the outset of their retirement or later) or he realises while they are in retirement that there is a point of law on which they may need assistance but on which he omitted to advise them in open court (see Practice Note (Justices. Clerks) [1953] 1 WLR 1416 for the rule that the clerk should not automatically retire with the bench and Uxbridge Justices, ex parte Smith (1985) 149 JP 620 for a case where his joining them uninvited was held to be justified). If the clerk does join the magistrates in their retirement, he should be careful to advise only on the law or other matters within his province. Having advised, he should return to open court. However, in a complicated case where the legal and factual issues are inextricably intertwined, there is no objection to the clerk being with the magistrates throughout virtually the entire period that they are considering their verdict (Consett Justices, ex parte Postal Bingo Ltd [1967] 2 QB 9).
In Eccles Justices, ex parte Farrelly (1993) 157 JP 77, the clerk to the justices spoke to them as they were about to deliver their verdict and went with them when they retired to reconsider. No explanation was given. The Divisional Court held that her conduct could give rise to legitimate inference that she had participated in the decision-making processes of the justices. Although the convictions were quashed, it was made clear that if the clerk had given the parties an explanation her conduct would have been impeccable.
If magistrates ask the clerk to retire with them in a case where there is no colourable reason for their needing his advice on law, the Divisional Court may take the view that they in fact sought his advice on the facts and will therefore quash any conviction (Guildford Justices, ex parte Harding (1981) 145 JP 174, where the two reasons suggested by the chairman of the magistrates why he and his colleagues had asked for the clerk, namely, to read them his notes of evidence and to advise on the standard of proof - were dismissed as inadequate because (a) they could have read his notes without having him in the retiring room and (b) if they did not know what the standard of proof was in an ordinary criminal case, then they should not have been sitting as magistrates at all). Ex parte Harding and the above-stated principles are without prejudice to the right (indeed responsibility) of the clerk to remind the magistrates of the evidence if the latter are in genuine doubt about what it was (see also Birmingham Magistrates, ex parte Ahmed [1995] Crim LR 503).
Running the Court
D18.33
Routine matters of procedure are conducted by the clerk. These include establishing the identity of the defendant when he comes into the dock; reading the charge or summons to him; asking for representations as to the mode of trial; telling the defendant of his right to trial on indictment if the magistrates agree to summary trial on an either-way offence; putting the information to him if there is to be a summary trial, and notifying the court whether the summons or adjournment notice have been properly served in a case where the defendant does not appear.
Noting the evidence
D18.34
It is implicit in Practice Direction (Justices: Clerk to the Court) [1981] 1 WLR 1163 that the clerk should take a note of evidence - see especially para. 3 which states that it is his responsibility to . refresh the justices. memory as to any matter of evidence and to draw attention to any issues involved in the matters before the court. . Moreover, the magistrates are entitled to . enlist the aid of their clerk and his notes if they are in any doubt as to the evidence which has been given. (para. 4). Additionally, r.17 of the Magistrates. Courts Rules 1981 requires the clerk to forward to the Crown Court a copy of his notes if an offender is committed for sentence to another magistrates. court. (Magistrates. Courts Rules 1981, r. 19(1)). The clerk also has an obligation to take a note of the argument when the court hears full argument as to bail (Magistrates. Courts Rules 1981, r. 90A). As to the desirability of supplying the defence with a copy of the clerk. s note if they are appealing against conviction to the Crown Court, see Clerk to Highbury Corner Justices, ex parte Hussein [1986] 1 WLR 1266.
It is suggested by the 1981 practice direction that, where the justices do wish to consult the clerk solely about the evidence or his notes of it, they should do so in open court (para. 4, subheading (c)). However, this may seem somewhat impractical in that the justices probably will not realise until after they have retired that their recollection of certain evidence is unclear, and reconvening the court while they are in the middle of considering their verdict merely to look at the clerk. s notes is hardly satisfactory.
Role if the Clerk where a Defendant is Unrepresented
D18.35
Although the clerk should not allow himself to become an advocate on behalf of an unrepresented party (per Sachs J in Hobby v Hobby [1954] 1 WLR 1020), it is accepted that he is entitled to assist such a party to present his own case (Simons v Moore [1970] 2 QB 327). Thus, it is common practice for clerks to explain to an unrepresented defendant the purpose of cross-examination and, if the defendant himself still seems to be incapable of doing it properly, to frame suitable questions on his behalf. Under the Magistrates. Courts Rules 1981, r.13A, the court must explain to an unrepresented defendant the substance of the charge in simple language. The same rule states that if the defendant, instead of asking questions in cross- examination, makes assertions, then the court should put away any necessary questions to the witness on behalf of the defendant. Both of these functions are in practice usually discharged by the clerk. At the close of the prosecution case, the clerk will inform the defendant of his right to give and call evidence if he so wishes. It has also been suggested that, where an unrepresented defendant appears in danger of . throwing away his shield. and exposing himself to cross-examination about previous convictions, the clerk should ask the magistrates to retire briefly so that he and the prosecutor can explain the position to the defendant (Weston-super-Mare Justices, ex parte Townsend [1968] 3 All ER 225).