The Unrepresented Defendant Revisited: A Consideration of the Role of the Clerk in Magistrates' Courts

Abstract

A feature of socio-legal research on magistrates' courts in this country has been its focus on magistrates and on defendants. Magistrates' appointments, their class backgrounds, their training, their sentencing have all been considered. The phrase 'magistrates' justice' used with more or less irony has been utilised as a description of what takes place in courts of summary jurisdiction. The problems of defendants have also been the subject of a great deal of study, and this work has been responsible for much-needed changes in patterns of representation in magistrates' courts. However, if the person on the by now tediously proverbial Clapham omnibus visited a magistrates' court (and if she or he went into any court at all it would be likely to be a magistrates' court) and were asked Who is running this court? they would be likely to identify the person sitting in front of the magistrates the clerk as the one in control. Despite the obvious prominence of the clerk, studies of the magistrates and their activities have, for the most part, neglected to examine the influence of their clerks, and that influence both in court and out of court is very considerable. It is the clerk who is responsible for training the magistrates both when they are first appointed and in all new legislation relevant to their activities indeed, it is possible for an older clerk with long service to have been responsible for training all of the magistrates on the bench. It has been established that this training can have a strong influence on the attitudes that magistrates bring to their task. When magistrates are adjudicating on cases in court they do so with the assistance of their clerk, and although the magistrates have the power to make the decisions about bail or custody, guilt or innocence and sentence, it is the clerk who has the necessary knowledge, qualifications and experience to make sure that they act within the law, and that the rules of procedure and evidence are followed. Lay people with little training (and perhaps little experience)