21 Apr 2010

Natural Justice - R Vs Sussex Justices 1924


FACTS
=====
In 1923 McCarthy, a motorcyclist, was involved in a road accident
which resulted in his prosecution before a Magistrates Court
for dangerous driving.

Unknown to the Defendant and his Solicitors,
the Clerk to the Justices was a member of the firm of Solicitors
acting in a civil claim against the Defendant
arising out of the accident
that had given rise to the prosecution.

The Clerk retired with the Justices,
who returned to convict the Defendant.

On learning of the Clerk's provenance,
the Defendant applied to have the conviction quashed.

The Justices swore affidavits stating
that they had reached their decision to convict the Defendant
without consulting their Clerk.

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JUDGEMENT
=========
The Appeal was essentially one of Judicial Review
and was heard at the King's Bench division
by Lord Chief Justice Hewart.

In a landmark and far-reaching judgement, Lord Hewart CJ said:


"It is said, and, no doubt, truly,
that when that gentleman [ the Clerk to the Justices ]
retired in the usual way with the justices,
taking with him the notes of the evidence
in case the justices might desire to consult him,
the justices came to a conclusion without consulting him,
and that he scrupulously abstained
from referring to the case in any way.

But while that is so,
a long line of cases shows
that it is not merely of some importance,
but is of fundamental importance,
that justice should not only be done,
but should manifestly and undoubtedly be seen to be done.


The question therefore is not whether in this case
the deputy clerk made any observation or offered any criticism
which he might not properly have made or offered;
the question is whether he was so related to the case in its civil aspect
as to be unfit to act as clerk to the justices in the criminal matter.

The answer to that question
depends not upon what actually was done
but upon what might appear to be done.

Nothing is to be done
which creates even a suspicion that there has been
an improper interference with the course of justice.


Speaking for myself,
I accept the statements contained in the justices' affidavit,
but they show very clearly that the deputy clerk
was connected with the case in a capacity
which made it right that he should scrupulously abstain
from referring to the matter in any way,
although he retired with the justices;
in other words, his one position was such that he could not,
if he had been required to do so,
discharge the duties which his other position involved.

His twofold position was a manifest contradiction.

In those circumstances
I am satisfied that this conviction must be quashed,
unless it can be shown that the applicant or his solicitor
was aware of the point that might be taken,
refrained from taking it,
and took his chance of an acquittal on the facts,
and then, on a conviction being recorded,
decided to take the point.

On the facts I am satisfied
that there has been no waiver of the irregularity,
and, that being so,
the rule must be made absolute and the conviction quashed."

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For Caradon District Council to be deciding
it's response to Tim Wilmot's allegations against council officers
on the basis of the same officers comprising a secret committee
that keeps no minutes,
is totally unacceptable.


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