Strasbourg, 7 January 2019
CONSULTATIVE COUNCIL OF EUROPEAN JUDGES (CCJE)
Please in your answers do not send extracts of your legislation (except just in one case mentioned below under question 26 where a separate attachment is possibly requested) but describe the situation in brief and concise manner.
Comments on what is also happening in practice, and not only on point of law, will be much appreciated.
This questionnaire aims at gaining information about the role and duties of assistants who support judges in their work. However, members of the security and IT staff are not covered. While there are different models in member States, this questionnaire distinguishes between administrative assistants and judicial assistants. The CCJE realises, however, that the line between the two groups is not always clear-cut.
For the purpose of this questionnaire, administrative assistants are assistants who help fulfilling the administrative duties of the court. They work, for example, on the organisation of files, correspondence, preparation of official versions of decisions, collecting documents and statistical data.
Judicial assistants usually have a legal education and support judges or panels of judges in their adjudicative work. Judicial assistants undertake a wide range of tasks such as research, acting as a sounding board in discussions with a judge, preparing memos on whether to grant permission to appeal or drafting judgments. Such persons might be called judicial assistants, law clerks, legal officers, secretaries, Wissenschaftliche Mitarbeiter, Gerichtsschreiber, référendaires or greffiers.
It should be emphasised that the court employees who are assigned their own tasks (i.e. Rechtspfleger) are not within the scope of this questionnaire. However, the questionnaire does touch upon the situation in some countries where judicial assistants, in addition to supporting judges, have their own tasks.
Part I contains questions about both administrative and judicial assistants and then focuses on the duties of judicial assistants. Parts II-IV contain questions exclusively about judicial assistants. Part II concerns the organisation of judicial assistants, Part III concerns the education and selection of judicial assistants, and Part IV concerns their regulation and status. Part V has two general questions about the optimal support for judges and the challenges your member State faces.
I. How are judges supported?
1. Are judges supported in their work by assistants who are not judges at that court (and also not members of the security or IT staff)?
a) by administrative assistants
b) by judicial assistants
Most judges have the assistance of an administrative assistant (called a clerk) who organises the diary, types judgments, receives case papers and liaises with the central administration. For senior judges there is one administrative assistant per judge. For more junior judges the services of an administrative assistant are shared.
Judges in the Court of Appeal (of whom there are 37) are entitled to a judicial assistant. For High Court judges (of whom there are 108) there is some provision for judicial assistants but there are not enough for all judges to have one. More junior judges have no judicial assistants. At the peak of the system the 11 Supreme Court judges have one judicial assistant between two.
In the criminal justice system minor crimes are tried by lay judges sitting in panels of three; and they have a legally qualified advisor to advise them on the law.
2. What is the rationale for employing assistants in your system? If there are different rationales for employing administrative assistants and judicial assistants, please describe those rationales separately.
The rationale for employing administrative assistants (clerks) is to enable judges to concentrate on judicial work; and also to have a person on hand to deal with matters during the time in which the judge is sitting in court.
The rationale for employing judicial assistants is twofold. On the one hand, it provides valuable experience “behind the scenes” for young lawyers. On the other hand it helps judges to have a summary of the facts of a case and the arguments advanced by each side; or to commission a particular piece of legal research necessary to decide a case.
3. What kind of duties judicial assistants have at the courts in your member State? If they perform different duties in different courts, please explain these duties separately. Such duties may include:
· Research, maybe summarised in a memo
· Discussion with the judge(s)
· Memos with a summary of the facts of a case and the relevant law
· Memos with a summary of the facts of a case and the relevant law and a suggestion of the judicial assistant how the case should be decided
· Memos summarising the facts and the relevant law and including a suggestion if a case should be accepted for appeal/constitutional review
· Drafting parts of the judgment, if so which parts? Facts, certain points under discussion?
· Drafting complete judgments
· Proofreading of decisions, maybe including discussing certain points with the judge/pointing out inconsistencies etc.
· Reading draft judgments of other judges and discussing them with the judge
· Crosschecking references
· Drafting press releases
· Drafting procedural decisions
· Deciding procedural issues such as appointing an expert or deciding on costs of proceedings
· Conducting hearings and deciding simple cases autonomously, for example concerning enforcement, or simple criminal cases. If so, please specify if a judge has to approve the decision or if the decision is taken by the judicial assistant alone.
· In addition to tasks such as those mentioned above, judicial assistants may also perform administrative duties such as:
- Writing protocols in hearings
- Organisation of files
- Correspondence with parties
- Preparing the official copies of decisions, preparing decisions for publication
- Collecting statistical data
The main duty of a judicial assistant is to prepare a memorandum on a particular case. This will consist of a summary of the facts; a summary of the arguments on each side; and (sometimes) a summary of what the judicial assistant thinks the outcome should be. If the matter under consideration is an application for permission to appeal, the judicial assistant’s role is the same. Some judges also involve their judicial assistants in helping to draft speeches and lectures, but this depends on the individual judge.
Judicial assistants also have an important role in cases in which one (or both) parties are unrepresented by lawyers. In such a case the judicial assistant will prepare a more detailed memorandum which will formulate the arguments of each party.
Judicial assistants also undertake research on areas of the law as requested by the judge to whom they are assigned. On average a judicial assistant will spend 8 hours per week in legal research.
Judicial assistants do not, in general draft any part of the judgment itself. They may be present as observers during deliberations among the judges, but they are not expected to participate in them. They may be asked by the judge whom they assist to carry out a specific piece of legal research.
In those cases tried by a panel of lay judges, the judicial assistant advises the panel on any question of law that arises. The lay panel is expected to follow that advice.
Judicial assistants do not have any decision making power.
4. If judicial assistants help in the drafting process, how do they do it?
In general they do not.
5. Are judicial assistants present during deliberations? If yes, do they participate in the discussion?
Although it is not invariable, it is quite common for judicial assistants to be present during deliberations; but they do not participate in the discussions unless specifically invited to do so.
6. Are judicial assistants present in hearings? If so, what duties do they have during hearings? Are they allowed to ask questions?
Judicial assistants are present during hearings. But they are present simply as observers, and they will be seated in the public part of the court. They are not allowed to ask questions during the hearing. But they may informally ask questions once the hearing has concluded during the judges’ informal deliberations.
7. Is there a formal rule or an informal consensus among judges, what kind of duties a judicial assistant should and should not undertake?
There is no formal rule (except that judicial assistants must preserve confidentiality of everything that they see or hear). There is a broad consensus among judges about the role of judicial assistants which I have outlined above.
8. Which duties belong exclusively to the judge?
Principally deciding the case and writing the judgment. The judge will also make any necessary procedural rulings that arise in the course of litigation.
9. How does the work of judicial assistants affect decisions and judicial decision making? How do judges ensure that the decision remains "their"?
Because the judicial assistant has no decision making powers; and for the vast majority of judges no role in actually writing the judgment, the decision and the expression of the decision will always be that of the judge. In the common law system, even at appellate level, judges are free to write individual judgments. This means that, unlike some civil law systems, judges express their decisions in their individual styles and are also free to dissent publicly if they do not agree with a majority decision.
10. Is there any official data or - if not - do you have a view how useful judicial assistants actually are e.g. in saving judges’ time ?
Data are kept for the Court of Appeal in order to show the budgeting authorities that it is worth continuing to hire judicial assistants. The data show that in the course of a year judicial assistants save approximately 10,000 hours of judges’ time. That is equivalent to an additional 6 full-time judges in the Court of Appeal.
II. Organisation of judicial assistants
11. At which courts in your member State are judges supported by judicial assistants? First instance/second instance/third instance/constitutional court?
The Supreme Court (1 judicial assistant per 2 judges); the Court of Appeal (1 judicial assistant per judge who requests one); the High Court (only a few judicial assistants for 108 judges assigned on an ad hoc basis). Circuit judges and tribunal judges do not have judicial assistants.
12. If there are lay judges in your system, are they specifically supported by judicial assistants?
In most cases involving lay judges (e.g. employment tribunals) they will sit in a panel of three chaired by a legally qualified judge. Other tribunals may sit in panels of two. Where there is a professionally qualified lay member (e.g. an accountant in a tax tribunal, or a medical practitioner in certain welfare tribunals) the other member will be a legally qualified judge. In such cases there is no additional judicial assistant. In the magistrates court (which tries minor criminal cases) a panel of three lay judges will be supported by a legal advisor.
13. How are judicial assistants organised? If there are different forms of organisation at different courts, please explain the different models. For example:
· Are assistants assigned to one judge individually? If so, how many assistants work for each judge?
· Or are they assigned to a panel of judges? If so, how many judicial assistants work for each panel?
· Or are they part of a pool of judicial assistants serving the whole court? If so, what is the ratio judge/judicial assistant?
· Or do they work in teams put together for certain cases? If so, what is the ratio judge/judicial assistant?
I have answered this question above.
14. Who pays them?
HM Courts and Tribunal Service: in other words the central budget for the courts and tribunals system.
15. What is their status? Are they considered as, for example, civil servants, seconded judges or just employees?
They are employed on temporary fixed term contracts as civil servants. Their period of employment is, in general, one legal year (which in practice means 10 months).
16. How much do they earn compared to the judges for whom they work? You do not need to indicate exact amounts, but mentioning the proportion between the salaries of judges and assistants would be helpful. For example, how does the salary of a judicial assistant working at a first instance court compare to that of a judge at that court?
In the Court of Appeal judges are paid at the rate of £210,000 per annum. Judicial assistants are paid at the rate of £30,000 per annum.
III. Background and selection of Judicial Assistants
17. Is serving as a judicial assistant a necessary part of the legal education in your member State / a prerequisite for becoming a judge?
No it is not.
18. What kind of education do judicial assistants have? For example, studies of law, politics, service in the police or military etc., a special education?
A judicial assistant must have completed an undergraduate degree and must show evidence of practical legal research. Otherwise there is no formal requirement. Judicial assistants are often trainee or newly qualified lawyers. But apart from that, their educational background and/or previous work experience is not relevant.
19. What kind of work experience do judicial assistants have? If they have a legal education, have they qualified for practice? Are they seconded judges? Have they gained practical experience, if so, in what areas?
They will often have had no work experience at all; but will have come straight from university. They do not necessarily have a background in legal education, although that is common. They are mostly on their way to qualifying as lawyers, although some may be newly qualified. But for all judicial assistants the role is undertaken at a very early stage of their legal career.
20. How are they selected?
They are selected by open competition once a year. They submit a CV and a statement of suitability. These are reviewed by a judge and a shortlist is invited for interview.
21. How long do judicial assistants usually work in that capacity? Just for one or a few months, or years? Or is it a long-term/permanent career?
The normal term is one legal year (in practice 10 months). It is definitely not a long-term career.
22. If it is a short-term position, what do they do afterwards?
Most judicial assistants will then go on to complete their legal training.
23. If serving as a judicial assistant is not part of the legal education, why do applicants apply to work as judicial assistants?
They regard seeing “behind the scenes” as a valuable insight into how the courts and judges operate in practice. They are exposed to complex cases at the earliest possible stage of a legal career. Familiarity with senior judges is also seen as a good mark on the CV of an aspiring lawyer.
24. If being a judicial assistant is a long-term/permanent position, are there opportunities for advancement?
IV. Status and regulation of judicial assistants
25. Do judicial assistants swear an oath? Do they wear some form of official dress at certain occasions? E.g. gowns when in court?
None of these.
26. Are there formal regulations concerning the status and duties of judicial assistants? if so, is it a statute or internal regulation? If yes, what is regulated by them? Could you provide, as a separate attachment to your answers, the text of the regulation please?
There are no formal regulations. Their role is explained informally during the course of an induction day.
27. Are there informal rules governing the relationship between judge and judicial assistants?
The relationship between a judicial assistant and the judge is very much a personal matter for the two of them.
28. Are there any rules - formal or informal - concerning the independence and impartiality of judicial assistants?
There are no formal rules. Judicial assistance are told to maintain confidentiality at all times; and to declare any potential conflict of interest. But otherwise, partly because they have no decision-making power, there are no particular rules.
29. Can judicial assistants in your member State become members of an association of judges or is there a special association for them?
V. General considerations about the support of judges
30. Do you believe that judges in your system would need more or different support by personnel to work effectively? If yes, what kind of support?
In the UK judges rely very heavily on the lawyers to undertake whatever research is necessary for deciding a case. The tradition of oral argument allows the judges to raise questions with the lawyers. The combination of that plus the use of judicial assistants on the whole gives sufficient support.
31. Are there certain challenges that your member State faces as regards the support for judges which have not been mentioned so far?
In the UK the main challenges do not involve support as such. We have a serious recruitment problem, which means that the individual caseload on serving judges is increasing all the time. The life of serving judges would be much easier if we could fill vacant posts. In addition, there are major challenges in delivering a fully functional and reliable IT system; and the physical condition of the buildings in which judges work needs extensive repair and refurbishment.