The Role of the Magistrates' Court Legal Advisor

For the Magistrates' Court to be correctly constituted the bench must include either a District Judge (Magistrates' Court) or at least two Magistrates.

As most Magistrates do not have any professional legal qualifications, it is a mandatory requirement that they sit with a professionally qualified Legal Advisor.

District Judges, as professionally qualified lawyers in their own right, are not required to sit with a Legal Advisor, although they sometimes do owing to local circumstances. The most common arrangement is for a District Judge to sit with a Court Associate, who has an administrative rather than an advisory role (and is paid half as much as a Legal Advisor). The Legal Advisor or Court Associate sits at a desk immediate in front of the bench.

In today's article we are going to explore the role of the Legal Advisor. The Legal Advisor is referred to in legislation as an Assistant to the Justices' Clerk. They are still informally referred to as the Clerk, particularly by longer standing Magistrates. The Legal Advisor is usually addressed in court by their title and name - e.g. Mr Brown or Mrs Smith. They are probably a very familiar face to the Magistrates and advocates present in court.

Just as the name suggests, the Legal Advisor is there to advise the Magistrates on points of law and procedure. They advise the Magistrates on the options that are legally available to them, but it is not the Legal Advisor's job to be making the decisions of the court in terms of verdict or sentencing. As one of my regular Legal Advisors often says: "I am here to give you advice, but it says Magistrates' Court above the door!"

That said, the Justices' Clerk (now called the Head of Legal Operations in HMCTS jargon) can grant Legal Advisors delegated authority that allows them to perform certain functions of the court by themself. A full list of these functions can be seen in the schedule of The Justices' Clerks Rules 2005.

The full duties of the Legal Advisor are outlined in The Criminal Procedure Rules. As a brief guide, the Legal Advisor would usually be responsible for:

• Giving the court legal and procedural advice. In the courtroom this advice is always given aloud, so that all parties can hear what is being said. If advice is given out of the courtroom - say in the retiring room - the Legal Advisor will always make sure the parties know any advice that has been given.
• Putting the charges to a defendant and taking a plea.
• Recording decisions made by the court and reasons for them.
• Assisting the court in the formulation of the reasons for its decision. The decision is entirely a matter for the Magistrates, but their reasons have to be clearly announced. Having heard the Magistrates' opinion, the Legal Advisor can advise on the wording etc.
• Drawing the court's attention to the allegation made against a defendant, the evidence that is agreed and the evidence that is in dispute between the parties.
• Recording the substance (not verbatim) of any oral evidence or representations made to the court.
• Providing assistance to unrepresented defendants.
• Assisting the court with robust and efficient case management.
• Listing cases before the court for subsequent hearings (e.g. after adjournment, for trial, for the purposes of case management).
• In the absence of the usher, administering the oath or affirmation to witnesses giving oral evidence to the court.
• Operating the equipment needed for the court to work remotely via videolink or telephone.
• When undertaking Single Justice Procedure work, ensuring that the court is aware of the full circumstances of the offence as outlined by the prosecution and any representations by the defendant.

The Legal Advisor has a professional advisory role, which is distinct from the decision making role of the Magistrates. The Magistrates are expected to carefully listen to and act upon the advice given by the Legal Advisor. They leave themselves wide open to criticism, disciplinary and legal repercussions if they do not.

In all but the most routine of circumstances (e.g. sentencing someone for being drunk and disorderly), it is always a good idea for the Magistrates to check the legality of their decisions with the Legal Advisor before they are announced in court. This reduces the possibility of any embarrassing mistakes being made.

I cannot speak highly enough about the Legal Advisors that I work with. They are exceptionally knowledgeable and expert in Magisterial law. They perform their duties cheerily, efficiently and with the utmost professionalism.

As the calendar has just rolled into 2022, let me take the opportunity to wish everyone a very happy, healthy and successful new year.