Justices' clerk
Encyclopedia
A justices' clerk is an official of the magistrates' court
in England and Wales whose primary role is to provide legal advice to justices of the peace (also known as magistrates).
in England and Wales from the 12th century. The Justices of the Peace Act of 1361 provided, amongst other things, “That in every county of England shall be assigned for the keeping of the peace, one lord and with him three or four of the most worthy of the county, with some learned in the law, and they shall have the power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take and chastise them according to their Trespass or Offence". Originally known as “clerk of the peace
”, “clerk of the justices” or “clerk of the keepers of the peace”, the clerk who assisted the justices at Quarter Sessions
was required to act as a record keeper and, being a lawyer, to provide legal advice to justices of the peace. However, from Tudor times many justices used their personal servants as their legal advisers out of Quarter Sessions and, in the 19th century, many benches were using local solicitors to advise them in their Petty Sessions work. In 1848, as the summary jurisdiction of justices began to expand at Petty Sessions, so the importance of the role of justices' clerk increased and in 1851 an Act of Parliament allowed justices' clerks' fees to be paid out of public funds for the first time. By the 20th century, there was a preponderance of part-time clerks, which was criticised by the report of the Roche Committee in 1944. This report led to the Justices of the Peace Act 1949 and a move towards full-time clerks.
The justices' clerk's role has been adapted to account for modern requirements. The office holder is now a civil servant following the creation of Her Majesty's Courts Service
(HMCS now Her Majesty's Courts and Tribunals Service
) on 1st April 2005. However, although the justices' clerk is line managed by a senior civil servant for administrative purposes, he/she retains independence when undertaking judicial functions and giving legal advice to magistrates.
• questions of law
• mixed law and fact
• practice and procedure
• range of penalties
• relevant decisions of higher courts and other guidelines
• other relevant issues
• decision making structures
Additionally, in the court room, the justices’ clerk and his assistant legal advisers may ask questions of witnesses and parties to clarify evidence and issues. They must ensure that every case is conducted fairly and assist unrepresented defendants to present their cases (without becoming an advocate). Where appropriate, they are responsible for assisting magistrates with the formulation and recording of reasons.
The Justices’ Clerks’ Society, the membership of which includes all justices’ clerks and many legal advisers, provides professional leadership for lawyers who work in the magistrates’ courts by giving legal advice and guidance, and is represented on a number of national bodies and HMCTS steering and working groups. Its President meets regularly with the Senior Presiding Judge for England and Wales.
. A person can only be designated if he/she has a five year magistrates' court qualification, was a barrister or solicitor who had served for not less than five years as an assistant to a justices' clerk, or had previously been a justices' clerk. Assistants were required to have certain minimum qualifications (see Justices' Clerks (Qualification of Assistants) Rules 1979 (SI 1979/570), as amended).
The Assistants to Justices’ Clerks Regulations 2006, in regulation 3, set out the qualifications for assistants to justices’ clerks who could be employed as clerks in court. They provided that people who have qualified as barristers or solicitors and had passed the exams for either of those professions or had been granted an exemption were qualified to be assistants to justices’ clerks which meant that they can carry out matters on behalf of the justices’ clerk. The 2006 Regulations also enabled the Lord Chancellor to make temporary appointments of people to act as clerks in court where he was satisfied that they were, in the circumstances, suitable and that no other arrangement can reasonably be made.
However, the Assistants to Justices' Clerks (Amendment) Regulations 2007 amended regulation 3 of the 2006 Regulations. The effect was to clarify that those:
i. who were in employment as an assistant registered by the Law Society under regulation 23 of the Training Regulations 1990;
ii. who held a valid training certificate granted by a magistrates’ courts committee
before 1st January 1999; or
iii. who acted as a clerk in court before 1st January 1999 and were qualified to act as such under the Justices’ Clerks (Qualification of Assistants) Rules 1979 (as amended) to carry out the duties of assistant clerks can act;
may act as clerks in court.
Section 27 (4) of the Act provides that before reassigning a justices’ clerk, the Lord Chancellor must consult the bench chairman of the relevant local justice area(s).
Magistrates' Court
A magistrates' court or court of petty sessions, formerly known as a police court, is the lowest level of court in England and Wales and many other common law jurisdictions...
in England and Wales whose primary role is to provide legal advice to justices of the peace (also known as magistrates).
History
The office of justices’ clerk (or clerk to the justices) is historically linked with the development of the office of justice of the peaceJustice of the Peace
A justice of the peace is a puisne judicial officer elected or appointed by means of a commission to keep the peace. Depending on the jurisdiction, they might dispense summary justice or merely deal with local administrative applications in common law jurisdictions...
in England and Wales from the 12th century. The Justices of the Peace Act of 1361 provided, amongst other things, “That in every county of England shall be assigned for the keeping of the peace, one lord and with him three or four of the most worthy of the county, with some learned in the law, and they shall have the power to restrain the Offenders, Rioters, and all other Barators, and to pursue, arrest, take and chastise them according to their Trespass or Offence". Originally known as “clerk of the peace
Clerk of the Peace
A clerk of the peace held an office in England and Wales whose responsibility was the records of the Quarter Sessions and the framing of presentments and indictments. They had legal training, so that they could advise justices of the peace.-England and Wales:...
”, “clerk of the justices” or “clerk of the keepers of the peace”, the clerk who assisted the justices at Quarter Sessions
Quarter Sessions
The Courts of Quarter Sessions or Quarter Sessions were local courts traditionally held at four set times each year in the United Kingdom and other countries in the former British Empire...
was required to act as a record keeper and, being a lawyer, to provide legal advice to justices of the peace. However, from Tudor times many justices used their personal servants as their legal advisers out of Quarter Sessions and, in the 19th century, many benches were using local solicitors to advise them in their Petty Sessions work. In 1848, as the summary jurisdiction of justices began to expand at Petty Sessions, so the importance of the role of justices' clerk increased and in 1851 an Act of Parliament allowed justices' clerks' fees to be paid out of public funds for the first time. By the 20th century, there was a preponderance of part-time clerks, which was criticised by the report of the Roche Committee in 1944. This report led to the Justices of the Peace Act 1949 and a move towards full-time clerks.
The modern justices’ clerk
Although their functions have changed considerably over the intervening years, justices’ clerks and their assistants (also known as legal advisers/court clerks) remain the linchpin of magistrates' courts. Because magistrates are unpaid members of the local community and do not need to have legal qualifications, they are advised in court on matters of law, practice and procedure by justices' clerks and their assistants. In 2010 there were 49 full-time justices’ clerks in England and Wales.The justices' clerk's role has been adapted to account for modern requirements. The office holder is now a civil servant following the creation of Her Majesty's Courts Service
Her Majesty's Courts Service
Her Majesty's Courts Service is an executive agency of the Ministry of Justice and is responsible for the administration of the civil, family and criminal courts in England and Wales....
(HMCS now Her Majesty's Courts and Tribunals Service
Her Majesty's Courts and Tribunals Service
Her Majesty's Courts and Tribunals Service is an agency of the Ministry of Justice. It was created on 1 April 2011 by the merger of Her Majesty's Courts Service and the Tribunals Service....
) on 1st April 2005. However, although the justices' clerk is line managed by a senior civil servant for administrative purposes, he/she retains independence when undertaking judicial functions and giving legal advice to magistrates.
Judicial powers
A justices’ clerk has the powers of a single magistrate, for example to issue a summons, adjourn proceedings, extend bail, issue a warrant for failing to surrender to bail where there is no objection on behalf of the accused, dismiss an information where no evidence is offered, request a pre-sentence report, commit a defendant for trial without consideration of the evidence and give directions in criminal and family proceedings. The justices’ clerk may delegate these functions to a legal adviser (referred to as “assistant justices’ clerk” in the relevant legislation).Advising and supporting magistrates
The justices’ clerk is also responsible for the legal advice tendered to magistrates in and out of the courtroom either personally or by his assistant legal advisers. In the courtroom, whether or not requested, a legal adviser must provide advice necessary for magistrates to properly perform their functions. This includes advice on:-• questions of law
• mixed law and fact
• practice and procedure
• range of penalties
• relevant decisions of higher courts and other guidelines
• other relevant issues
• decision making structures
Additionally, in the court room, the justices’ clerk and his assistant legal advisers may ask questions of witnesses and parties to clarify evidence and issues. They must ensure that every case is conducted fairly and assist unrepresented defendants to present their cases (without becoming an advocate). Where appropriate, they are responsible for assisting magistrates with the formulation and recording of reasons.
Other functions
Outside the court room, the justices' clerk also supports the work of a bench (or benches) of magistrates by providing administrative support and advice to their various committees and meetings, is responsible for their training and development of magistrates, and assists in their pastoral care. He/she is also responsible for the management and training of legal advisers and with his/her management team, provide guidance and directions to other staff on legal issues and operational matters, such as listing. They work towards achieving improvements in performance and with other criminal justices agencies through Criminal Justice Boards.The Justices’ Clerks’ Society, the membership of which includes all justices’ clerks and many legal advisers, provides professional leadership for lawyers who work in the magistrates’ courts by giving legal advice and guidance, and is represented on a number of national bodies and HMCTS steering and working groups. Its President meets regularly with the Senior Presiding Judge for England and Wales.
Appointment, reassignment or removal
A justices’ clerk is appointed under section 27(1) of the Courts Act 2003 by the Lord Chancellor and designated as such after consultation with the Lord Chief Justice to one or more local justice areasLocal justice areas
Local justice areas are units in England and Wales established by the Courts Act 2003, replacing and directly based on the previous petty sessions areas. They have been in existence since 2005....
. A person can only be designated if he/she has a five year magistrates' court qualification, was a barrister or solicitor who had served for not less than five years as an assistant to a justices' clerk, or had previously been a justices' clerk. Assistants were required to have certain minimum qualifications (see Justices' Clerks (Qualification of Assistants) Rules 1979 (SI 1979/570), as amended).
The Assistants to Justices’ Clerks Regulations 2006, in regulation 3, set out the qualifications for assistants to justices’ clerks who could be employed as clerks in court. They provided that people who have qualified as barristers or solicitors and had passed the exams for either of those professions or had been granted an exemption were qualified to be assistants to justices’ clerks which meant that they can carry out matters on behalf of the justices’ clerk. The 2006 Regulations also enabled the Lord Chancellor to make temporary appointments of people to act as clerks in court where he was satisfied that they were, in the circumstances, suitable and that no other arrangement can reasonably be made.
However, the Assistants to Justices' Clerks (Amendment) Regulations 2007 amended regulation 3 of the 2006 Regulations. The effect was to clarify that those:
i. who were in employment as an assistant registered by the Law Society under regulation 23 of the Training Regulations 1990;
ii. who held a valid training certificate granted by a magistrates’ courts committee
Magistrates' courts' committees
From 1949 to 2005, magistrates' courts' committees had overall responsibility for management of the magistrates' courts service within their areas in England and Wales.-Origin:...
before 1st January 1999; or
iii. who acted as a clerk in court before 1st January 1999 and were qualified to act as such under the Justices’ Clerks (Qualification of Assistants) Rules 1979 (as amended) to carry out the duties of assistant clerks can act;
may act as clerks in court.
Section 27 (4) of the Act provides that before reassigning a justices’ clerk, the Lord Chancellor must consult the bench chairman of the relevant local justice area(s).
External links
- Her Majesty’s Courts and Tribunals Service http://www.hmcourts-service.gov.uk/cms/973.htm
- Justices’ Clerks’ Society http://www.jc-society.com/