Justices' clerks fear that a shake-up in the way they are appointed may threaten their independence and expose them to unwanted political interference, reports Nigel Hanson

They are rarely advocates for themselves, preferring instead to steer other people's cases through the courts.

But justices' clerks, who boast an 800-year history, contend that their independence is under threat - and for a change they have been presenting their own case, briefing journalists, lobbying politicians and seeking public support.

The threat comes, they say, from the Courts Act 2003.

As things stand, the chief legal advisers to magistrates will become civil servants on 1 April 2005, appointed by and answerable to the Department for Constitutional Affairs (DCA) (see [2004] Gazette, 13 May, 4).

The shake-up is set to happen once the Constitutional Reform Bill has been enacted to abolish the post of Lord Chancellor, which for years breached the separation-of-powers constitutional principle.

Previously, the 70 or so justices' clerks in England and Wales were appointed by magistrates' courts committees (MCCs), acting on behalf of the Lord Chancellor.

But the 42 MCCs are in turn being abolished to make way for the new HM Courts Service, the unified agency that will run all courts below the House of Lords.

As the Lord Chancellor and his post's anomalous link with the executive are finally scrapped, justices' clerks are to join the executive in a move that they consider regressive.

'Our view is that this is a serious threat to our independence,' says Andrew Mimmack, president of the Justices' Clerks Society (JCS) and clerk to the Central Devon and North Devon Magistrates' Court.

'We are concerned about the long-term implications.'

What are the fears, in practical terms? A classic example involves anti-social behaviour orders (ASBOs), explains Mr Mimmack.

'There's huge concern at the moment about ASBOs and their enforcement.

We don't have a problem with that being high profile and we fully support a firm line being taken for the benefit of the community, but there's a tendency of government departments to try to intervene.'

He says a civil servant at the government office for the south-west recently wrote to him complaining about 'aberrant' sentences (meaning lenient) imposed by magistrates on two defendants who had breached ASBOs, one appearing before Central Devon Magistrates' Court, the other before South Devon Youth Court.

Mr Mimmack suspects the civil servant was not aware of all the factors raised in court.

'I haven't taken it to the magistrates,' he says.

'I shall simply be replying that this sort of intervention is inappropriate.'

The letter also cited 'unnecessary adjournments' and 'wrong decisions'.

Mr Mimmack says: 'The fear is that since we have lost the independence, there's a danger that the "civil servant justices' clerks" of the future might be subject to strong pressure to toe the party line as it were, in terms of their advice to, and training of, magistrates.'

He adds: 'In the short term, there are enough justices' clerks around with sufficient experience and independence of mind to fight off most inappropriate interventions.

Obviously, we are living in a democracy and no Third Reich situation is going to arise - the political culture is such that civil servants aren't going to abuse their position.

'But a head of steam can build up over certain issues.

Currently, it's ASBOs, school attendance and fines enforcement - and pressures can build.'

Mr Mimmack is not the only JCS official arguing the case.

After Attorney-General Lord Goldsmith told the JCS annual conference in Stratford-upon-Avon last month that the independence of judges and justices' clerks was not incompatible with playing a full part in helping to deliver an effective criminal justice system, JCS chief executive Sidney Brighton warned: 'If justices' clerks are appointed by the executive and can be dismissed or promoted by it, there will be pressure on them to give the interpretation of the law put by the executive.'

The importance of the role played by justices' clerks, who have to be barristers or solicitors with at least five years' post-qualification experience, should not be underestimated.

They are managers to about 2,500 more junior colleagues - who themselves must now be solicitors or barristers, though some satisfy requirements with a diploma under transitional arrangements - in magistrates' courts that conclude 97% of all criminal cases.

Uniquely, they are allowed access to the retiring room during trials, rendering any suggestion of political interference particularly controversial.

Their powers have been gradually extended over the years to help the smooth running of courts and are now codified in the Justices' Clerks Rules 1999.

In some instances, they exercise powers otherwise conferred on a magistrate sitting alone, and may extend bail, issue summonses, order defence costs from central funds and issue arrest warrants.

The greatest single extension of their powers came under the Children Act 1989, with authority to run directions appointments.

More followed in the wake of the Narey report on avoidance of delays, published in 1997, including the power to grant bail for fast-tracked defendants appearing for the first time after police charge.

Bureaucratic duties were hived off to new court chief executives under the Police and Magistrates' Courts Act 1994, leaving justices' clerks to concentrate on legal matters.

Beyond this, their duties include training lay magistrates under the guidance of the Judicial Studies Board.

Current tactics in defending their cherished independence include seeking an amendment to the Constitutional Reform Bill that would trigger consequential amendments to the Courts Act.

Neil Clarke, a JCS past president, has been lobbying for justices' clerks to be listed in schedule 12 of the Bill along with other court personnel to be appointed by the planned judicial appointments commission on behalf of the Crown, rather than by the DCA.

Mr Clarke, the justices' clerk for Northamptonshire, says: 'We are going to try as hard as we can - we are approaching anybody and everybody.

'We have support from all levels of the judiciary and are making sure the public are aware of the issues.

Everyone on the inside who understands all this finds it unacceptable.

Only the government finds it acceptable.'

The Bill is currently at select committee stage before its third reading in Parliament and could be passed later this year.

Practitioners have also expressed concern.

North London solicitor Frank Brazell, of Brazell & Partners, who has experience representing criminal clients at magistrates' courts across London and the Thames Valley, maintains that diluting clerks' independence could expose them to pressure from policy-makers.

He says: 'The judiciary and court system have striven to find an appropriate way to implement, advance and debate government policy free from specific government pressure.

'The change in the appointments system, distinguishing clerks from other court appointments, could undermine that for ever.'

Meanwhile, rank-and-file court staff, including experienced deputy clerks, principal legal advisers and legal advisers, are troubled by how their status and pensions might be affected.

Colin Webster, deputy justices' clerk at Oxford Magistrates' Court, says: 'What concerns people at the moment is the uncertainty.

The situation has remained unresolved for months.

'Although there have been a number of roadshows from the Court Service, people like myself, as deputy justices' clerk, and those below me who also have a management role, are still in the dark as to what's happening.'

Mr Webster, who is responsible for running Oxford Magistrates' Court whenever his boss - justices' clerk Sue Litter - is away, says he does not know whether he will have officially recognised independence when deputising in future.

He adds: 'There's concern and anxiety among court staff as to the benefits of leaving what is currently a good local government pension scheme for the new Court Service scheme.'

The government maintains that independence is ensured by section 29(1) of the Courts Act, which states: 'A justices' clerk exercising...

a function exercisable by one or more justices of the peace...

is not subject to the direction of the Lord Chancellor or any other person.'

A DCA spokesman is dismissive of the clerks' case, viewing the recent changes as a fait accompli.

'Legislation bringing the justices' clerks into the DCA as civil servants was passed last year,' he says.

'In any event, justices' clerks are not judicial office-holders - they do not take judicial oath.

'Their status is much more limited than that of a judicial office- holder, such as a district judge in a magistrates' court.

Their functions are set out in regulations and are limited to things authorised by, or to, a single justice of the peace.

This means they have no jurisdiction to conduct trials or sentence offenders, but rather to advise the magistrates who do carry out these functions.

Justices' clerks are presently managed by the justices' chief executive of the MCC, who is an administrator.'

Clearly Mr Mimmack, who dons the mantle of clerks' leading counsel as JCS president this year, has a difficult brief.

He accepts that the Courts Act provides some safeguards, but claims it is too narrow.

When training magistrates away from his own courts - in Cornwall, for example - he says the executive could in theory dictate how he instructs them.

The parties agree, it seems, on one issue - the JCS does not oppose the 2,500 legal advisers becoming civil servants - so long as the the 70 justices' clerks, who supervise them, retain their independence, which will ensure the independence of legal advice to magistrates.

As Mr Mimmack says: 'There's not really a perceived problem about that [the 2,500 legal advisers becoming civil servants].

We are the gate-keepers for them.

We can concede that the government wouldn't agree to 2,500 people getting quasi-judicial independence.'

But gloves are off in the dispute over the main point of principle - the independence of justices' clerks themselves.

Mr Mimmack hopes the government will not to turn its back on a successful tradition that has seen the vast majority of criminal prosecutions and a substantial number of family cases handled by lay magistrates advised by truly independent professionals.

'It's a partnership that has worked well for the last few centuries,' he says expansively.

This is a case the clerks evidently feel they must win, and the judges - or at least the select committee - are still out.

Nigel Hanson is a freelance journalist