The role of the Justices’ Clerk in the magistrates’ courts is now dealt with in the Consolidated Criminal Practice Direction as follows:
(V.55.3) It shall be the responsibility of the legal adviser to provide the justices with any advice they require properly to perform their functions, whether or not the justices have requested that advice, on:
(a) questions of law (including European Court of Human Rights jurisprudence and those matters set out in section 2(1) of the Human Rights Act 1998);
(b) questions of mixed law and fact;
(c) matters of practice and procedure;
(d) the range of penalties available;
(e) any relevant decisions of the superior courts or other guidelines;
(f) other issues relevant to the matter before the court; and
(g) 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.
(V.55.4) 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.
(V.55.5) 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.
(V.55.6) When advising the justices the justices' clerk or legal adviser, whether or not previously in court, should:
(a) ensure that he is aware of the relevant facts; and
(b) 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.
(V.55.7) 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 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.
(V.55.9) 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.
5th Edition » | Chapter 9