La experiencia, una configuración narrativa

'The Justices' Clerk should be able to provide, (and ensure that their legal teams provide), a high standard of professional and legal advice and support for magistrates, .. ensure that the advice to the magistrates is accurate, concise and clear. They should practice, and encourage court clerks to apply a positive and active approach' (Extract from a Job Description for a Justices' Clerk). These basic responsibilities were expanded upon by one Justices' Clerk in a letter to the Editor of The Magistrate, 'The Practice Direction of 1981, states that the clerk is responsible also for advising justices in mixed law and fact, practice and procedure .. justices frequently require assistance, not only in relation to legal matters but also in relation to other crucial considerations such as consistency, conformity to guidelines and the service of the overall interests of justice rather than the interests of any one party. A decision while being perfectly legal, may offend against one or more of these considerations without the steadying hand of the legal adviser..' (The Magistrate, Oct. 1993, p159). All of which suggests that the Justices' Clerk and the court clerks have a considerable input in the decision making process.

From my many years of experience, I have no doubts that, in the main, the advice given by the clerks to 'their magistrates' is very professional and of the highest standard. I would also totally agree with the Justices' Clerk's opinion that the magistrates do frequently need assistance and advice not only on legal matters but on the other 'crucial considerations' which he has specified. Also from my experience and particularly during the period of my observations in the courtroom, I have also concluded that this advice can be used as a means for influencing the magistrates, and that it can be introduced in a number of different forms. It can be direct or indirect, it can be employed in the courtroom or the retiring room, or it may be introduced in a number of guises which are actually peripheral to the actual decision making process. Two examples of the peripheral activities are the magistrates' training programmes and court communications such as court circulars or newsletters. The Clerk has the opportunity to influence the magistrates without them realising it through their training. It is the Clerk who has the responsibly for training the magistrates and who decides the content of their training programmes, including the previously mentioned sentencing exercises, although in the study area it is true to say that this particular aspect of training has lately been undertaken by the stipendiary magistrate. With regards to influencing the Bench by means of court circulars, I quote three examples which occurred during the period of my research. The first two are extracts from the Court Newsletters, a circular written by the Justices' Clerk, 'In [the study area] court, a custodial sentence is four times as likely for burglary than it is for violence..' or even more pointedly, 'I find it impossible to reconcile a fine of £125 for using a car without insurance

with a fine of £50 for wounding with a glass'. It would appear to be too much of a coincidence that these two expressions of concern by the Clerk were soon followed by the Bench resolution calling for a tougher sentencing policy for certain types of violent crime. Although it has to be admitted that this resolution was also influenced by another factor which was referred to in a previous section. Another method of influencing sentencing could be put under the heading of The Dissemination of Information' or more specifically the distribution of the local crime statistics. As the Justices' Clerk observed, 'I believe that Magistrates should be kept informed, not at least for the purposes of ensuring that where there are significant increases in certain types of criminal activities, offenders appearing before the court charged with such offences should be dealt with accordingly' (April 1992).

While it is accepted that the court clerks by the very nature of their role cannot avoid being influential through the advice that they give, I have occasionally been drawn to the conclusion that the way in which they seek to influence can sometimes exceed their official mandate. Sometimes it is what is said, and that may not necessarily be a piece of advice, it could well be a rhetorical question. On other occasions it is not what is said but a poorly disguised expression of disapproval or the failure to disguise some element of body language, and all these are signals which can, and do, cause the decision makers to think again. Sometimes the influence can be direct. In its simplest form it is when the court clerk says to the magistrates," With your agreement Sir..'', and then goes on to announce some decision that he and possibly others have arrived at. Then there is the example of the court clerk who informed the magistrates without any prior consultation, "There is no way that a sentence can be made in this case without the aid of a report". That clerk had obviously decided that the offence should be dealt with by either a community or a custodial penalty. The magistrates on this occasion went along with the 'recommendation', perhaps they agreed, or perhaps they did not wish to embarrass their clerk in open court. On another occasion a bench were considering an application for a remand in custody for a very serious drugs related offence. It was obvious that the magistrates were undecided but were favouring 'conditional bail' providing that a place could be obtained for the defendant in a Bail Hostel. On asking this question of the clerk, they were informed that "If a place had been available in a Bail Hostel, you would have been told about it by the defendant's solicitor". The clerk also volunteered an opinion that if the defendant was convicted for these offences at the Crown Court, then "..he would be the subject of a long custodial sentence". It was quite obvious that the clerk was not in favour of the defendant being allowed bail. The magistrates arrived at their decision and remanded the defendant in custody. Possibly this was the correct decision. The point at issue is, who actually made the decision and did the advice which the magistrates received meet the criteria of being a 'high standard of professional and legal advice'?

Neither is the way in which the magistrates are influenced always as obvious and as direct as the examples quoted above. While observing in a Fines Enforcement court, it appeared to me that the questions being put to the defendants by the court clerk and the way in

which the questions were phrased was tending to channel the magistrates into a certain course of action. For example, "If the magistrates allow you your freedom this afternoon, what offer do you make to the court in order to pay off these fines"? I would suggest that once this question has been asked and an offer has been made, it leaves the magistrates with very little alternative but to accept the offer, unless of course the fines defaulter is silly enough to make some totally unacceptable or derisory offer to the court. Once the question has been asked and once an offer has been made, it is doubtful if the court are then in a position where they could find, if they wanted to, either 'culpable neglect' or 'wilful refusal'. I did ponder in my notes of the occasion, 'Whether the clerk's knowledge of that particular chairman actually enabled him to anticipate the bench's policy and thus allowed him to push through the afternoon's business at pace. Or whether the clerk was dictating the role of the decision makers and the bench were just content to acquiesce'. I have previously made reference to the situation where I was convinced that the aggressive attitude of the court clerk, which in turn evoked an aggressive response from the defendant, was the most influential factor in a mother of eight young children receiving a suspended committal to prison for the non-payment of a fine.

In some of my discussions with the court clerks, while it was always claimed that they never set out with the intention of influencing the magistrates in their decision making, it was conceded that on occasions this outcome would be inevitable, in fact it was expected. I also gained the impression that this was a situation accepted not only by the court clerks, but also by some of the other participants in the courtroom. As I heard one court clerk confiding to the chairman after a hearing, "They were saying earlier that I was in a bad mood and then after you had consulted me, you announced that you were imposing a custodial sentence. I don't know what they thought I had been telling you". I was reliably informed by that chairman that this particular decision had been made prior to the clerk having been consulted. But it might well be interpreted from what the clerk said, that some court users automatically assume that it is the court clerks' input which is the deciding factor in the decision making process. I also came to the conclusion having talked to the court clerks that they considered that the decisions made by the magistrates whom they were advising often reflects on them. After one defendant had been given a custodial sentence, a sentence which was obviously not considered appropriate by the court clerk, that same clerk confided that he welcomed the appeal against sentence which had been lodged on behalf of the defendant.