ࡱ> PRO 0bjbj .hjj,l000000022222222$ >022222j0022jjj2.0202j2jrj:,002& #$r:`@ 0JRNjDJ60000DELEGATION OF POWERS BY JUSTICES CLERKS TO NON LEGALLY QUALIFIED STAFF IN MAGISTRATES COURTS IN ENGLAND AND WALES - RESPONSE OF THE LAW REFORM COMMITTEE The Law Reform Committee of the Bar Council of England and Wales welcomes the opportunity to respond to the consultation on the delegation of powers by justices clerks to non legally qualified staff in magistrates courts in England and Wales. The Committee feels that the delegation of any of the case progression functions contained in the Justices Clerks Rules 2005 is both unnecessary and undesirable. The Committee strongly opposes the use of secondary legislation to create a category of non legally qualified assistant clerks. Background Section 28 of the Courts Act 2003, which came into force on 1st April 2005, provides that rules may be made enabling things authorised to be done by a single justice of the peace to be done instead by a justices clerk or an assistant clerk. The schedule to the Justices Clerks Rules 2005 specifies the things that may be done by, to or before a justices clerk or an assistant clerk. These include the adjournment of the hearing of a complaint if the parties consent (paragraph 7) and the fixing or setting aside of a date, time and place for the trial of an information (paragraph 15). Justices clerks and assistant clerks must normally be legally qualified. The qualifications required of assistant clerks are set out in the Justices Clerks (Qualification of Assistants) Rules 1979. The Secretary of State may authorise the employment of a non-qualified person for a maximum of six months in certain specified circumstances1. The Consultation Paper seeks views on whether justices clerks should be able to delegate any of the functions specified in the Justices Clerks Rules 2005 to non legally qualified staff to assist in listing and case progression. The Paper suggests the delegation to non legally qualified staff of out of court work applying to routine functions such as dealing with agreed adjournments and fixing of a later date for trial where such issues are non-contentious2. We are reminded that the Effective Trial Management Programme (ETMP) is now in force throughout the country. The aim of the Programme is to improve case preparation and progression. At the beginning of every case, the court must now nominate a Case Progression Officer (CPO), whose duties include monitoring compliance with directions and making sure that the court is kept informed of events that may affect the progress of that case3. We are told in paragraphs 20-22 of the Consultation Paper that, prior to 1st April 2005, justices clerks would delegate functions including listing, case progression and fines enforcement, to non legally qualified staff. In relation to listing and case progression we are told that, in practice, non legally qualified staff would only perform these functions where there was agreement between prosecution and defence. The Consultation Paper points out that the arrangement of trials and agreed adjournments often require quick decisions. The Paper suggests that case progression would be improved by enabling CPOs and listing officers to undertake these functions4. We are told that since 1st April 2005 additional pressures on legal staff have mounted. A large court centre with 600 cases listed each day will have 8-10 adjournments, 5 vacated trials and 2-4 remittals requests per day5.A legally qualified clerk or assistant clerk must currently deal with all these matters. The delegation proposed would not be mandatory and would be at the discretion of individual justices clerks. The Consultation Paper outlines two means of achieving the proposed changes. The first is by amending the Courts Act 2003 to allow non legally qualified staff, in addition to justices clerks and assistant clerks, to perform the functions contained in the Justices Clerks Rules 2005. We are told that amending primary legislation in this way is likely to take around two years. The second option proposed involves amending secondary legislation. The Consultation Paper proposes amending the Justices Clerks (Qualifications of Assistants) Rules 1979 to create a new category of non legally qualified assistant clerks. 1.Should non legally qualified staff be able to carry out certain delegated functions under the Justices Clerks Rules 2005 provided they have the relevant qualifications/experience as deemed fit by the justices clerk (who would retain the overall responsibility for these functions)? If so, should the justices clerk determine the parameters of delegation or should it be restricted by legislation to specific rules? The Consultation Paper talks about the delegation of case progression functions. Of the functions specified in schedule to the Justices Clerks Rules 2005, only paragraphs 7 and 15, which are summarised above, are specifically mentioned. The Consultation Paper also seems to suggest that the powers set out in paragraphs 7 and 15 will only be exercisable by non legally qualified staff where the parties agree to the proposed action. Other than being able to sanction an adjournment to which all parties agree, we note that the Consultation Paper does not specify exactly what functions ought to be delegated to non legally qualified staff. The reference to case progression functions does not assist. The vast majority of out of court case progression work is purely administrative, such as checking whether directions have been complied with and confirming that the parties are ready for trial. These functions do not fall under the Justices Clerks Rules 2005 in any event. The two functions set out in paragraphs 7 and 15 of the schedule to the Justices Clerks Rules 2005, concern the listing of trials. In our view, listing is a judicial function and listing decisions ought therefore to be sanctioned by a clerk or an assistant clerk. The decision to adjourn a case, even with the agreement of the parties, requires consideration as to whether there is a good reason for the adjournment. We believe a justices clerk or assistant clerk, who is in a position to fully appreciate all of the issues in the case, should take the decision as to whether a good reason exists in any particular case. This is particularly important where a defendant is in custody and an adjournment of the trial date means a further loss of liberty. We question the assertion that the functions set out in paragraphs 7 and 15 were carried out by non legally qualified staff prior to 1st April 2005. We are aware that in a number of court centres, adjournments have always been brought before either a bench of magistrates or a clerk, whether or not they are agreed between the parties. We query whether the previous legislation permitted these functions to be carried out by non legally qualified staff in any event. If, contrary to our submissions, there is to be any delegation of powers to non legally qualified staff, we are of the firm view that the parameters of such delegation must be decided by Parliament. 2.Which non legally qualified staff should perform these functions (i.e. case progression officers and listing officers)? How will this be decided and by whom? We note that the functions referred to in this question are not clearly defined. However, we oppose the suggestion that non legally qualified staff should perform any of the functions set out in the Justices Clerks Rules 2005, for the reasons set out above. 3.Which option do you believe represents the best way to proceed? Retain the status quo Make legislative changes so as to authorise the proposed delegations? We believe that the statue quo should be maintained for the reasons set out above. We nevertheless make the following observations about the proposed legislative changes. If you favour the second option, please say whether the Government should- Proceed by primary legislation Proceed by secondary legislation We strongly oppose the use of secondary legislation to create a new category of non legally qualified assistant clerks. Parliament clearly did not contemplate that non legally qualified staff might carry out the functions of justices clerks. The Consultation Paper refers to the comments by Baroness Scotland of Asthal during the passage of the Courts Act in the House of Lords6. It should be noted that these comments were made in response to a proposed amendment seeking to confirm that functions authorised to be done by a justices clerk or assistant clerk would not be done by any other person: Amendment No. 54 appears to seek confirmation that those functions authorised to be done by a justices' clerk or an assistant to a justices' clerk must not be done by any other person. I respectfully say that I do not see that this amendment really adds anything. The wording in subsection (2) of Clause 23 already specifically states that these functions are authorised to be done by a justices' clerk or an assistant to a justices' clerk. There is no mention of any other person undertaking these functions7. It is clear that Parliament did not contemplate that other persons, such as non legally qualified staff, would undertake any of the functions of a justices clerk. Similarly, Parliament cannot have contemplated that other persons might be made assistant clerks by amending secondary legislation. In our view the proposals in this Consultation Paper are an attempt to circumvent the provisions of the Courts Act 2003 in a way that was clearly contrary to the intention of Parliament. Furthermore, the creation of a new category of non legally qualified clerks devalues the role of the assistant clerk and fails to appreciate the importance of the education and training that assistant clerks have received. The creation of a category of non legally qualified clerks gives rise to a danger that secondary legislation could be amended further in future, perhaps to extend the powers of non legally qualified staff beyond those proposed in this Consultation Paper. It is our firm view that this is highly undesirable. 4.If you consider the Government should pursue primary legislation only, please say if possible how you consider the magistrates courts should cope with the current difficulties of operating the present system of delegation. We do not feel that the difficulties in operating the present system are sufficient cause for concern. We question the figures given in paragraph 26 of the Consultation Paper. Non legally qualified staff, under the current proposals, could not deal with any disputed adjournments and we are not told how many of the 8-10 adjournments referred to are agreed adjournments. Furthermore, given the number of clerks likely to be employed at a court centre dealing with 600 cases per day, we query the contention that consideration of agreed adjournments significantly adds to the workload of legally qualified staff. While there may be other areas, such as fines enforcement, where the role of non legally qualified staff requires further consideration, we do not consider that the delegation of the limited case progression powers contained in the Justices Clerks Rules 2005 to non legally qualified staff is either necessary or desirable. 30 November 2005 _________ 1 Justices Clerks (Qualifications of Assistants) Rules 1979 Rule 6 2 Paragraph 2 3 Criminal Procedure Rules 2005 Rule 3.4 4 Paragraph 25 5 Paragraph 26 6 Paragraph 15 7 Hansard Column 497: 10/02/03 HL "#,-0189BCKLXYbcnob c 6 7 hiAH M!!!!!!"""##"#$$}%y'z'{'y+[,00"0#0ǼB*H*aJph0JB*H*aJph0JB*aJphB*H*aJph0JB*aJph B*aJph5>*OJQJ\aJ5>*OJQJ\aJ$F f M : 2B" ^I M!$a$$a$0M!!!!""###$}%~'e)E*y+\,-.00"000^ & Fdd[$\$ & Fdd[$\$#0f0h0t0u000000000000 B*aJphB*H*aJph B*aJph,1h. 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