The role of the clerk in Magistrates' Courts

Abstract

This thesis aims to reveal the very considerable extent of the power and influence of the clerk to the justices and court clerks in magistrates' courts, and to assess the nature of the balance achieved by clerks between the demands of the organisation of the courts which they run and their role as the court's lawyer with responsibility for upholding, inter alia, due process norms. The first section of the thesis examines the role of the clerk in the courtroom. After assessing the extent to which the clerk's behaviour is constrained by legal rules, the relationship between clerk and magistrates is examined and the impact of the clerk on the proceedings of the court and the decisions of the magistrates are considered. It is argued that the clerk has a significant effect on the experience of all of those who come into contact with the criminal justice system and to this end the relationship between the clerk and unrepresented defendants, the clerk and the legal profession, the clerk and the police, and the clerk and probation officers and social workers is assessed. The second part of the thesis deals with the role of the clerk outside the courtroom. The influence of the clerk to the justices on the attitudes of magistrates through training is considered, and the impact of the clerk on policy decisions for the court is assessed. The quasi-judicial powers of the clerk are examined and the question of whether there is scope for future extension of the clerk's role is addressed. It is concluded that the role of the clerk is one of the most significant factors in determining the nature of summary justice, that the nature of the clerk's role is ready for re-assessment and that this may be most appropriately achieved by extension of the legal role of the clerk. The clerk does play a real part in protecting due process rights, but in relation to the protection of unrepresented defendants the clerk cannot be as effective as an advocate, and as a result represents a liberal compromise of 'good enough' justice.