Practice Direction (Justices: Clerk to Court); 2 Oct 2000

References: [2000] 4 All ER 895, [2000] 1 WLR 1886
Coram: Lord Woolf LCJ
Lord Woolf gave guidance as to the duties of the clerk to the magistrates as to the manner of assistance to be provided to them. He set out that it was the responsibility of the legal adviser to provide the justices with any advice they might require properly to perform their functions whether or not the justices had requested that advice, on questions of law; questions of mixed law and fact; matters of practice and procedure; the range of penalties available; any relevant decisions of the superior courts or other guidelines; other issues relevant to the matter before the court; and the appropriate decision-making structure to be applied in any given case. In addition to advising the justices it was his responsibility to assist the court, where appropriate, as to the formulation of reasons and the recording of those reasons. The Practice Direction then goes on to note (paragraph 4) that a justice’s clerk or legal adviser must not play any part in making findings of fact. It adds that he may assist the bench by reminding him of the evidence, using any notes of the proceedings for this purpose. The practice direction is clear that if the justice’s clerk gives any advice to a bench he should give the parties or advocates an opportunity of repeating any relevant submissions prior to that advice being given. If it is given in private he should report that advice to the parties, and the advice should be regarded as provisional and clearly stated to be so. The adviser should subsequently repeat the substance of that 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.
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