The end of the justices’ clerk and other changes, or not

Family Law|Industry News|December 17th 2018

It’s a sad thing when one discovers that the job title that your late father once proudly held will soon be no more.

Back in the 1980s my father was the Justices’ Clerk at Gravesham (Gravesend) Magistrates’ Court, or to give him his full title, ‘Clerk to the Justices for the Petty Sessional Division of Gravesham’. The term ‘Petty Sessional Division’, meaning the area over which the court had jurisdiction, has already passed into history, being replaced by ‘local justice areas’ in 2005, and now it is the turn for the term ‘justices’ clerk’ itself.

Before I proceed I should explain, for the benefit of those who don’t know, exactly what a justices’ clerk is.

Unlike judges most magistrates who dispense justice in the magistrates’ courts are not legally trained. They are volunteer lay people: pillars of the local community – head teachers, doctors, successful business people, and so on. They do have some training, but they are most certainly not lawyers. Obviously, they often require legal guidance when they decide cases. The guide is someone who does have a legal training: the justices’ clerk. The clerk usually sits in front of the magistrates in court, on hand to assist when required and to bring any point of law to the attention of the magistrates (but not to make decisions for the magistrates). Each magistrates’ court will have several clerks, and one of them will be the ‘Clerk to the Justices’, who not only provides legal guidance for magistrates in court but is also in charge of the day-to-day running of the court.

As I said, my father was very proud to be the Clerk to the Justices. He had worked hard to get there: training in his spare time to become a barrister whilst holding down a full-time job and bringing up a young family, then doing his time as a clerk at Old Street and Wells Street courts in London, then as Deputy Clerk to the Justices at Chatham, before getting the top job at Gravesend.

I have now found out that the term is also to be consigned to history, by the Government’s Courts and Tribunals (Judiciary and Functions of Staff) Bill, which will allow court and tribunal staff across all jurisdictions to exercise specified judicial functions, and give legal advice to magistrates sitting in family and criminal proceedings (I will not go into the details of quite how this will differ from the present system). I’ve read the Bill (it’s not very long – you can find it here), and to be honest I’m not exactly sure what those doing the work of justices’ clerks will be called in future (eminent legal commentator Joshua Rozenberg has used the term ‘court legal adviser’ to describe those given the functions of a justices’ clerk), and quite what the person in charge of a magistrates’ court will be called, I’ve no idea – I don’t see how they can be called the ‘Clerk to the Justices’ when there is no longer any such thing as a ‘justices’ clerk’. Maybe these things will be clarified by forthcoming rules.

Whilst I doubt that my father would be happy (it is ironic that Dad took early retirement from a job he loved, because he was fed up with the constant change and interference from above), perhaps these changes will be for the better. With no disrespect to clerks everywhere (I was once one myself, an ‘articled clerk’ – a term that has also been subjected to change, morphing into ‘trainee solicitor’), I always thought that the term ‘clerk’ was somewhat lowly to describe the person in charge of a magistrates’ court, and caused the job to be devalued in the eyes of the public.

And what is the relevance of all of this for those who work in, or find themselves caught up in, the family justice system? Well, I doubt that they will notice much difference – magistrates will still make decisions, guided by legal advisers. Whether there will be any improvement in the system, we will have to wait and see.

However, the Bill is significant not so much for what it contains, as for what it omits.

Most of the provisions in the Bill were included in the previous Prisons and Courts Bill, which was withdrawn when the general election was called last year. However, the Prisons and Courts Bill contained much more, including a provision to allow courts to appoint a publicly-funded legal representative to undertake the cross-examination of alleged victims of domestic abuse, so that they aren’t cross-examined by their alleged abusers who did not have legal representation. The omission of this excellent provision from the new Bill is giving rise to concerns that it may not see the light of day again.

Once again, we will just have to wait and see.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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