The Magistrates' Clerk
| DOI | 10.1177/002201837403800208 |
| Published date | 01 April 1974 |
| Date | 01 April 1974 |
| Subject Matter | Article |
The
Magistrates' Clerk
ACRITICAL
REVIEW
(Alec Samuels*)
THE Clerk to the Magistrates, said
Lord
Parker
L.C.J./
is a
most
important
fellow. Indeed he is.
He
must
be
not
only a
sound lawyer
but
a
man
of infinite integrity, patience,
tact
and
firmness."
He
comes
under
a good deal of public
and
professional
criticism, some of it justified,
and
his position has become decidedly
ambivalent.
Career
The
sources for recruits to
the
service should be widened.
There
are
very few lady Clerks.
The
Clerk usually come up
through
the magistrates'
court
service
or
has been a prosecuting
solicitor.
It
is undesirable
that
aClerk should perhaps
appear
to
be disposed towards the prosecution because of his experience
or
should have
had
no experience outside the service. Lawyers with
defending experience
and
indeed legal experience generally should
be
brought
in
much
more.
This
was one of the advantages of
the
fast disappearing part-time Clerk.
The
Clerk should be required
to pass a special examination in magisterial law
and
practice
before
being eligible for appointment. Incidentally, it is utterly illogical
to fix salary upon the size of the population of the division, usually
the
town
or
city.
The
job
tends to be
dead
end.
The
career
structure
must
be drastically improved.
The
Clerk has no legal
security of tenure.
In
appropriate cases the Clerk should be
advanced to circuit administrator if a good administrator.
He
should be appointed to the bench as stipendiary'" (this has occa-
sionally happened, e.g.
Mr.
K. Cooke,
Mr.
Bradley), or as one of
the
flying
or
temporary
stipendiaries
under
the
Administration of
Justice
Act
1973 for which office he would
appear
to be parti-
• I
am
most grateful to
Keith
Clarke, Clerk to the
Southampton
Magistrates, for
discussing a draft,
but
the text must not, emphatically not, be taken to represent
his views.
The
author
is solely responsible for the text.
Hansard,
House of Lords, Vol. 292, col. 102, 13
May
1968. Curiously
enough
there
appears to be no
Handbook
for the Magistrates' Clerk. Proof
of
Guilt, Glanville
Williams,
third
edition 359-363. Spotlight onJustice,
Paul
Cave, Daily
Mirror
1954.
2
Keith
Clarke [1964] Crim. L. R. 620, 627.
2a
Lord
Hailsham
L. C. (1973) 137
J.P.N.
363.
169
170
THE
JOURNAL OF CRIMINAL LAW
cularly suitable, or recorder.
The
creation of a single amalgamated
unified
court
service,
under
the Lord Chancellor, embracing all
courts
and
personnel,
and
providing opportunities for
breadth
of
experience, movement
and
promotion, is critically necessary
and
Government has wrongly rejected this reform.
The
unqualified assistant
The
legal position of
the
unqualified assistant, the
court
clerk,
is somewhat obscure.
It
seems
that
while sitting in the
court
the
unqualified assistant has all the powers of the Clerk, e.g. in advising
and
retiring,
and
he
may
exercise express
and
possibly delegated
powers from the Clerk himself.
It
has been suggested
that
going
on leave the Clerk should expressly in writing delegate all his
powers to his deputy."
Everybody would like to see a fully qualified
court
assistant
service.
The
young inexperienced unqualified
court
clerk (with
no A levels) in
court
no. 6 is a most undesirable feature of the
system.
More
often
than
not magistrates sit with an unqualified
clerk.
Putting
a very experienced
chairman
in
that
court
is only
apartial remedy.
But
one must have regard to realities.
The
Lord
Chancellor
may
prescribe qualifications for assistants (Justice of
the Peace
Act
1968 s.5
(2))
but
there is no hope of acting under
these powers in the foreseeable future, though a
start
could be
made with new appointments.
Under
the Criminal Justice Act
1972 s.62
the
Secretary of
State
is authorised to provide
courses of instruction for the Clerk
and
his staff.
The
Clerk
will often hold himself available in his office whilst the courts are
sitting so
that
the unqualified
court
clerks
can
refer to him for
advice on any point of difficulty.
The
local solicitor has been
known to exploit the situation by
putting
impossible points before
the unqualified
court
clerk
that
he would not
put
before the
Clerk himself.
This
is unpardonable.
The
Justices' Clerks Society
has organised courses for staff, e.g.
at
Manchester
and
Bristol
Polytechnics
(Home
Office
Circular
25/73)
and
at
Exeter,
but
the whole thing needs to be
much
more systematised. A six weeks
residential course followed by a correspondence course leading to
adiploma is inadequate.
Proper
professional qualification is
essential.
The
qualified Clerks who sit in London with stipendiaries
3 (1961) 125J.P.N. 396; (1963) 127
J.P.N.
649 -
JUSTICE;
(1969) 133J.P.N. 707;
(1970) 134J.P.N. 340. There is no statutory officeof deputy, though in practice an
assistant is often so designated.
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