Practice Directions
Justices: Clerk to Court
A justices' clerk is responsible for:
- the legal advice tendered to the justices within the area;
- the performance of any of the functions set out below by any member of his/her staff acting as legal adviser;
- ensuring that competent advice is available to justices when the justices' clerk is not personally present in court.
- the effective delivery of case management and the reduction of unnecessary delay.
Where a person other than the justices' clerk (a "legal adviser"), who is authorised to do so, performs any of the functions referred to in this direction he/she will have the same responsibilities as the justices' clerk. The legal adviser may consult the justices' clerk or other person authorised by the justices' clerk for that purpose before tendering advice to the Bench. If the justices' clerk or that person gives any advice directly to the Bench, he/she should give the parties or their advocates an opportunity of repeating any relevant submissions prior to the advice being given.
It shall be the responsibility of the legal adviser to provide the justices with any advice they require to properly perform their functions whether or not the justices have requested that advice, on:
- questions of law (including ECHR jurisprudence and those matters set out in s2(1) of the Human Rights Act 1998)
- questions of mixed law and fact;
- matters of practice and procedure;
- the range of penalties available;
- any relevant decisions of the superior courts or other guidelines;
- other issues relevant to the matter before the court;
- the appropriate decision making structure to be applied in any given case;
In addition to advising the justices it shall be the legal adviser's responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons.
A justices' clerk or legal adviser must not play any part in making findings of fact but may assist the Bench by reminding them of the evidence, using any notes of the proceedings for this purpose.
A justices' clerk or legal adviser may ask questions of witnesses and the parties in order to clarify the evidence and any issues in the case.
A legal adviser has a duty to ensure that every case is conducted fairly.
When advising the justices the justices' clerk or legal adviser, whether or not previously in court, should:
(i) ensure that s/he is aware of the relevant facts;
(ii) provide the parties with the information necessary to enable the parties to make any representations they wish as to the advice before it is given.
At any time, justices are entitled to receive advice to assist them in discharging their responsibilities. If they are in any doubt as to the evidence which has been given, they should seek the aid of their legal adviser, referring to his/her notes as appropriate. This should ordinarily be done in open court. Where the justices request their adviser to join them in the retiring room, this request should be made in the presence of the parties in court. Any legal advice given to the justices other than in open court should be clearly stated to be provisional and the adviser should subsequently repeat the substance of the advice in open court and give the parties an opportunity to make any representations they wish on that provisional advice. The legal adviser should then state in open court whether the provisional advice is confirmed or if it is varied the nature of the variation.
The performance of a legal adviser may be appraised by a person authorised by the magistrates' courts committee to do so. For that purpose the appraiser may be present in the justices' retiring room. The content of the appraisal is confidential, but the fact that an appraisal has taken place, and the presence of the appraiser in the retiring room, should be briefly explained in open court.
The legal adviser is under a duty to assist unrepresented parties to present their case, but must do so without appearing to become an advocate for the party concerned.
The role of legal advisers in fine default proceedings or any other proceedings for the enforcement of financial orders, obligations or penalties is to assist the court. They must not act in an adversarial or partisan manner. With the agreement of the justices a legal adviser may ask questions of the defaulter to elicit information which the justices will require to make an adjudication, for example to facilitate his or her explanation for the default. A legal adviser may also advise the justices in the normal way as to the options open to them in dealing with the case. It would be inappropriate for the legal adviser to set out to establish wilful refusal or neglect or any other type of culpable behaviour, to offer an opinion on the facts, or to urge a particular course of action upon the justices. The duty of impartiality is the paramount consideration for the legal adviser at all times, and this takes precedence over any role he or she may have as a collecting officer. The appointment of other staff to "prosecute" the case for the collecting officer is not essential to ensure compliance with the law, including the Human Rights Act 1998. Whether to make such appointments is a matter for the justices' chief executive.
The Practice Direction (Justices' Clerk to Court) 1981 1WLR 1163 is revoked. Practice Note (Justices' Clerks) 1954 1 WLR 213 remains in force.
This practice direction is issued with the concurrence of the President of the Family Division.
2 October 2000