England and Wales High Court (Administrative Court) Decisions

1. THE LORD CHIEF JUSTICE: In this application for judicial review, made by leave of the single judge, the applicant challenges a decision of the Stipendiary Magistrate for Norfolk sitting at Thetford Magistrates' Court on 10 October 1996 and re-affirmed on 28 November 1996. The magistrate's decision was that he was not disqualified from hearing the trial of the applicant on charges of theft and taking a vehicle without the owner's consent.

2. The facts giving rise to the application, as set out in the applicant's Form 86A, are these. On 9 or 10 May 1996 a Range Rover and a caravan were taken in Norfolk without the consent of their respective owners. The applicant and another man named Davidson were arrested and in due course charged with the theft of the Range Rover and the caravan. On 5 August 1996 the applicant and his co-defendant appeared before the South Norfolk Magistrates' Court sitting at Thetford. On that occasion the prosecutor argued in favour of trial on indictment in the Crown Court, but the court ruled that the charges were suitable for summary trial. The applicant and Davidson consented to summary trial and pleaded not guilty. The matter was then adjourned for trial, which was later fixed for hearing at Thetford Magistrates' Court on 10 October 1996. Up to this time no mention had been made of any undisclosed material in the possession of the prosecution.

3. On 2 September, however, the applicant's solicitors wrote to the Crown prosecutor, seeking information about a potential witness. This request for unused material was repeated later in the month.

4. The senior Crown prosecutor responsible for the conduct of this prosecution was a Mr Crampton. On 25 September he attended on the magistrate in order to make an ex parte application for non- disclosure of unused material without notice to the defence. He placed before the magistrate for his consideration a report from a senior police officer comprising a bundle of papers concerning, among other things, information that had been given to the police relating to the case and the source of that information. There was a short hearing on 25 September at which the magistrate ruled that the matter should be dealt with on notice to the defence, and further that the Crown Prosecution Service should tender to the defence the name and address of a potential witness by the name of Terry Yallop.

5. Mr Crampton wrote to the applicant's solicitors on 25 September indicating, as he had been directed, that he proposed to make an ex parte application for non-disclosure to the magistrate. The applicant's solicitors, however, responded to this notice by representing to the clerk to the justices that the hearing should take place inter partes and that the solicitor be at liberty to make representations. This application was brought to the attention of the magistrate who decided that the application should be made inter partes, and the Crown prosecutor did not resist this decision. On 26 September Mr Crampton wrote to the applicant's solicitors, giving them the name and address of the witness as directed.

6. The non-disclosure application was listed for hearing at the Thetford Magistrates' Court on the morning of the day set for the trial, 10 October. At the outset of the non-disclosure hearing the magistrate refused a request by the applicant's solicitor that the applicant and his co-defendant be present in court to hear the non-disclosure application. The magistrate then proceeded to hear that application in the presence of the Crown prosecutor and also of the applicant's solicitor. At the hearing Mr Crampton referred the magistrate to the papers that had been placed before him on 25 September, and also placed before him an additional secret report from a senior police officer comprising a further bundle of papers. None of these papers was disclosed to the applicant's solicitor, but it was made plain that the undisclosed material related to an informant.

7. After hearing argument on both sides, the magistrate ruled that the prosecution need not disclose to the defence the information in the two reports before him. The question then arose whether the magistrate himself could or should proceed to hear the case against the two defendants or whether he should consider himself disqualified and stand down. For the applicant it was argued that in all the circumstances the only proper exercise of the magistrate's discretion was to disqualify himself. For the prosecution Mr Crampton accepted that this would have been a correct submission if the matter were being tried before a bench of lay justices, but he drew a distinction between a lay bench and a stipendiary magistrate, and on that basis resisted the suggestion that the magistrate should disqualify himself. The magistrate considered that he should not disqualify himself. He explained the effect of the application made on 25 September and assured both defendants that their guilt or innocence would be determined on what happened at the trial and that he would exclude from his consideration the information which he had ordered should not be disclosed. The applicant's solicitor sought an adjournment to consider these matters with his client and, on return to court, the magistrate indicated that he did not propose to delay the trial while the applicant made application for judicial review.

8. The trial did not, however, go ahead on 10 October since the magistrate granted an adjournment to give the defence additional time to trace the witness Mr Yallop.

9. The hearing resumed on 28 November 1996, when the question of an adjournment pending application for judicial review was raised again. On this occasion the magistrate decided that such an adjournment should be granted.

10. This application for judicial review is made on the basis that, on the facts as I have recited them, there was in all the circumstances a real likelihood of bias such that the magistrate should have declined to take part in the further hearing of the case. The governing law on the question of bias is now to be found in R v Gough [1993] AC 646, and in particular in a passage from the speech of Lord Goff, with which all their Lordships concurred, at p. 670C. Lord Goff said:

"In conclusion, I wish to express my understanding of the law as follows. I think it possible, and desirable, that the same test should be applicable in all cases of apparent bias, whether concerned with justices or members of other inferior tribunals, or with jurors, or with arbitrators. Likewise I consider that, in cases concerned with jurors, the same test should be applied by a judge to whose attention the possibility of bias on the part of a juror has been drawn in the course of a trial, and by the Court of Appeal when it considers such a question on appeal. Furthermore, I think it unnecessary, in formulating the appropriate test, to require that the court should look at the matter through the eyes of a reasonable man, because the court in cases such as these personifies the reasonable man; and in any event the court has first to ascertain the relevant circumstances from the available evidence, knowledge of which would not necessarily be available to an observer in court at the relevant time. Finally, for the avoidance of doubt, I prefer to state the test in terms of real danger rather than real likelihood, to ensure that the court is thinking in terms of possibility rather than probability of bias. Accordingly, having ascertained the relevant circumstances, the court should ask itself whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the tribunal in question, in the sense that he might unfairly regard (or have unfairly regarded) with favour, or disfavour, the case of a party to the issue under consideration by him;...."

11. Clear though that passage would seem to be, it has been the subject of some later consideration. In R v Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139, Simon Brown LJ at p. 151E set out a series of propositions which he derived from the speeches in R v Gough . That summary, valuable though it is, need not be recited in extenso. I myself took the opportunity to record what I understood (and still understand) to be the true effect of Lord Goff's speech. At p. 162D I said:

"The third class comprises cases in which there is no actual bias and no direct pecuniary interest giving rise to a presumption of bias. It was the bounds of this third class which were in issue in Gough. The House of Lords was there called upon to choose between two tests for inclusion in this class, both of the rival tests finding support in authority. One test was whether a reasonable and fair-minded person sitting in the court and knowing all the relevant facts would have had a reasonable suspicion that a fair trial was not possible because of bias on the part of the decision-maker. The second was whether there was a real likelihood, or danger, of bias. The House of Lords unanimously upheld the second of these tests, expressed in terms of real danger, to make clear that it is possibilities, not probabilities, which matter. This decision shows, as it seems to me, that the description 'apparent bias' traditionally given to this head of bias is not entirely apt, for if despite the appearance of bias the court is able to examine all the relevant material and satisfy itself that there was no danger of the alleged bias having in fact caused injustice, the impugned decision will be allowed to stand. The famous aphorism of Lord Hewart CJ in R v Sussex Justices, ex p McCarthy [1924] 1 KB 256 at 259, [1923] All ER Rep 233 at 234 that 'justice .... should manifestly and undoubtedly be seen to be done' is no longer, it seems, good law, save of course in the case where the appearance of bias is such as to show a real danger of bias."

12. That is, as I understand, the correct approach to the issue which is raised in this case.

13. I turn therefore to the question of public interest immunity applications in criminal trials. These arise where the Crown hold material relevant, or potentially relevant, to a prosecution which they are unwilling or reluctant to disclose to the defence on the ground that to do so would be seriously injurious to the public interest. The difficulty arises because any procedure for determining whether the material should be disclosed to the defence has necessarily to be conducted in a manner which conflicts with the general and important principle that justice should be administered openly with cards face upwards on the table and with the full knowledge of the defence as well as the prosecution.

14. To try and meet this difficulty the court has had to devise rules, a process which effectively began in R v Ward [1993] 1 WLR 619, (1993) 96 Cr App R 1, in which it was held that there was a duty on the prosecution to disclose any material which could be disclosed and to apply to the judge where there was relevant material which the prosecution considered could not properly be disclosed.

15. The rules laid down in that case were elaborated and refined in R v Davis, Johnson and Rowe [1993] 1 WLR 613, (1993) 97 Cr App R 110. At p. 114, in an important passage which need not be read in full, the court laid down the procedure to be followed. That procedure was designed to ensure that the defence were given all the notice which the exigencies of the particular case permitted. The decision recognised, inevitably, that the substance of the material which the prosecution seek to withhold cannot be disclosed until an order for disclosure is made. The decision also recognised that there might be some exceptional cases when it might be necessary to deny the defence even the information that an ex parte application had been made. At pp. 618 and 115 the Lord Chief Justice, giving the judgment of the court, added:

"We should add that where the court, on application by the Crown, rules in favour of non-disclosure before the hearing of a case begins, that ruling is not necessarily final. In the course of the hearing, the situation may change. Issues may emerge so that the public interest in non-disclosure may be eclipsed by the need to disclose in the interests of securing fairness to the defendant. If that were to occur, the court would have to indicate to the Crown its change of view. The Crown would then have to decide whether to disclose or offer no further evidence.

16. The matter came before the court again in R v Keane [1994] 1 WLR 746, (1994) 99 Cr App R 1. It was there emphasised that notice should wherever possible be given to the defence, and it was further emphasised that ex parte applications were an exception to the ordinary rule and were a procedure not to be adopted, save on the application of the Crown and for the specific purpose of testing whether the public interest justified non-disclosure of the material in question.

17. I turn now to two cases in which the court has had to consider the application of these rules to magistrates' courts. They are cases which do not sit very comfortably together. The first is R v Bromley Magistrates, ex parte Smith and R v Wells Street Magistrates' Court, ex parte King [1995] 1 WLR 944, [1995] 4 All ER 146, in which Simon Brown LJ, giving the first judgment, held at pp. 947F-G and 149G that the same rules and duties of disclosure applied in summary trials as in trials on indictment. At p. 150 he said:

"When, however, justices do find themselves presiding over a summary trial and an issue on disclosure arises, they should be advised as to the legal principles now established -- principles which, of course, substantially supersede the Attorney General's guidelines of December 1981 .... -- and should then decide the issue in conformity with those principles.

18. Simon Brown LJ then went on to rule that issues of disclosure were best ruled upon by the court which would conduct the trial and that if for any reason the court ruling on non-disclosure was not the court which conducted the trial, then the trial court should be apprised of the material which had been before the court on the earlier occasion. In those rulings he was, of course, following the guidance already given in R v Davis, Johnson and Rowe .

19. For my part, I have no difficulty in accepting the propositions which the court there laid down. These are rules designed to ensure the just disposal of criminal cases. There cannot be a lesser or different standard of justice in the magistrates' court than in the Crown Court. Nor, in my judgment, should it be held that a case involving a disclosure issue can only be heard in the Crown Court. There may doubtless be serious cases raising important issues of disclosure which are better handled in the Crown Court. That is recognised in the authorities. Sometimes the magistrates' court may embark on a summary trial and may wish to alter their role to that of examining justices in order that a disclosure issue may be ruled upon in the Crown Court. I would not, however, wish to give currency to the view that magistrates' courts may not properly decide issues of disclosure, nor that magistrates' courts should, as a matter of invariable practice, commit to the Crown Court any case in which an issue of disclosure is raised or is likely to be raised. That is essentially a matter for the judgment of the justices in each case.

20. The second of the two authorities is R v South Worcestershire Magistrates, ex parte Lilley [1995] 1 WLR 1595, [1995] 4 All ER 186. The facts of that case are summarised on pp. 1596H - 1597A and 188, crucially between F and G. It appears that at the outset of the trial the Crown indicated that it proposed to conduct an ex parte hearing. A brown envelope was then handed to the court and the justices retired to consider its contents. When they returned to court the justices said that they wished to admit testimony from the investigating officer in the case and to hear representations from the Crown. At that stage the applicant for judicial review and his solicitor were excluded from the proceedings for about 20 minutes during which a police officer, who was the investigating officer, gave evidence before the justices and the prosecuting solicitor made submissions to the court. At the end of that period the applicant and his solicitor were invited to rejoin the proceedings and the chairman of the bench announced that the court took the view that the sensitive material was immaterial. The applicant's solicitor then submitted that the justices should not adjudicate at the trial, and it was the justices' rejection of that submission which led to the application for judicial review.

21. Giving the first judgment, Rose LJ at pp. 1598 and 189F said:

"But it has to be borne in mind that judges, unlike lay magistrates, are lawyers, who have had many years of training in the art, if art it be, of excluding from their consideration irrelevant and inadmissible material."

22. That is, of course, true. But it is also, I suggest, true that jurors are habitually instructed to disregard material not adduced in evidence before them, and the integrity of our system of jury trial to a large extent depends on their ability to do so. It is also to be borne in mind that lay magistrates receive training in the exercise of their judicial function and the exclusion of irrelevant or prejudicial material form an important part of that function. I do not understand Rose LJ to have been suggesting that any distinction for the purposes of the case before him should be drawn between lay justices and stipendiary magistrates. I would not, for my part, support such a distinction. At pp. 1598D and 189J Rose LJ observed:

"The position of justices conducting a summary trial is, as it seems to me, at first blush, different because they have a fact-finding role which a Crown Court judge and examining justices do not."

23. That is again true but is, as I think, subject to the comments that I have just made.

24. Rose LJ then, with reference to ex parte Smith , went on to express certain reservations concerning that decision. The first reservation concerned the extent to which argument had been addressed on the points covered in the judgment of the court in that case. It appeared that there had been some argument, but it was not plain how central that argument had been. Secondly, Rose LJ pointed out that material which is brought to the notice of the court during a public interest immunity application may be so highly prejudicial that a different bench should conduct the trial. For my part I would accept that as a general statement, but I would regard it as a situation very unlikely to arise in relation to material which is the subject matter of the application. It would seem to me a situation only likely to arise in relation to extraneous comment or some irrelevant revelation, should such be made. Where the material which is brought to the attention of the court is properly the subject matter of the application it cannot, as it seems to me, be a ground for the court to disqualify itself if the successor court should, in accordance with good practice laid down by authority, be apprised of the same material.

25. Thirdly, Rose LJ drew attention to the fact that a line of decided cases on the appearance of justice had not been cited to the court in ex parte Smith . It is plain from the report that that is so, no doubt because the argument did not concern bias or apparent bias in that case. Had the issue arisen the court would no doubt have directed itself in accordance with R v Gough , of which Simon Brown LJ in particular was well aware.

26. Fourthly, Rose LJ drew attention to the difference between a voire dire or an argument about admissibility before justices and public interest immunity applications, the difference being that in the former cases the defendant and his adviser would be present throughout. That is certainly true; but if magistrates have ruled against the admission of disputed evidence damaging to a defendant and can nonetheless be safely relied upon to try the case, it at least suggests that the same is likely to be true in a public interest immunity context. It is worthy of note that in ex parte Lilley at pp. 1600D-E, 191J the court would appear, in applying the test of bias, to have reverted to the language which the House of Lords, as I understand, rejected in Gough. There is, however, no reason to suggest that the court's decision in ex parte Lilley was wrong; it was no doubt fully justified on the facts.

27. Attention should, however, be drawn to the observation of the court at pp. 1600D - 1601A and 192D where Rose LJ said:

"I accept Mr McGuinness's submission that, merely because justices have ruled after consideration of a public interest immunity claim that material presented to them is inadmissible, this does not, of itself, confer on a defendant a right to a hearing before a new bench. Equally, I have no doubt that in such circumstances justices have the power to order trial before a different bench. Whether or not such an order should be made is a matter within the discretion of the justices according to the circumstances of the particular case."

28. As a general statement I would, for my part, accept that. I would however add that in a case of an ordinary public interest immunity application, I would expect the court which rules on disclosure to proceed where possible to conduct the trial in accordance with the guidance in earlier authority.

29. In the present case Mr Hawkesworth for the applicant submits that the magistrate's decision not to disqualify himself from conducting the trial was plainly wrong and that this court should accordingly quash it. He submits that on 25 September, when both the applicant and his solicitor were absent, something may have been said about Mr Yallop which disparaged his credibility in the eyes of the magistrate, of which the applicant knew nothing. Objection is further taken that, on 10 October, the magistrate did not allow the applicant to be present while the argument on disclosure took place. These events, it is submitted, vitiate the magistrate's exercise of discretion and show a real danger of bias. I would, for my part, reject that submission.

30. Having embarked on the ex parte hearing on 25 September, the magistrate directed that notice of the hearing should be given to the defence and furthermore ordered the prosecution to disclose the name and address of a witness. That indicates to my mind that the magistrate was fully alive to the need to give the applicant all possible information and notice, and appreciated the need to give maximum disclosure. There is nothing whatever to suggest that any extraneous or damaging comment was made about the witness in the absence of the defence, and the suggestion that something may have been said is in my judgment the merest speculation.

31. The magistrate, having received representations from the defence, directed that the hearing should be held inter partes. That response on his part fortifies the impression that he was anxious to do all that could be done to give proper notice to the applicant. It is true that on 10 October he did not allow the applicant to be present, and it might have been better had he done so. He did, however, allow the applicant's solicitor to be present, and that suggests that he was going as far as he felt that the circumstances permitted to put the applicant in the picture. There is nothing in the evidence before us to suggest that the applicant's solicitor was embarrassed by lack of instructions, which he would have been able to obtain if the applicant had been present, or that he suffered any constraint in making submissions to the magistrate which were not inherent in his necessary ignorance of the nature of the material disclosed. He was alerted to the category in which the undisclosed material fell, namely that it related to an informant. It is very difficult to see what submission he could have made which he was not in a position to make.

32. In summary there is, in my judgment, nothing to suggest that the magistrate's decision was plainly wrong and, indeed, everything to suggest that it was in all the circumstances right. I would dismiss this application.

33. MR JUSTICE BUXTON: I agree. This application must be approached in the context of the principles laid down by this court in R v Bromley Magistrates, ex parte Smith [1995] 4 All ER 146. Those were as follows. First, the defendant is as much entitled to the safeguards designed to produce a fair trial in the magistrates' court as he is in the Crown Court, and therefore the prosecution is under the same duty of disclosure in respect of unused material in summary trials as they are in trials on indictment. Secondly, as a corollary of the first principle, the public interest is entitled to the same protection in the magistrates' court as in the Crown Court. Thirdly, the procedure in the magistrates' court should follow as nearly as may be the procedure laid down (albeit with the Crown Court in mind) in the cases of Davis and Keane to which my Lord has made reference. Fourthly, it is the case that, unlike the judge in the Crown Court, the magistrates are judges of fact. But that is not an objection for the reasons given by Simon Brown LJ in ex parte Smith at page 150F - H, a passage which my Lord has already cited.

34. Consistently with those principles, the same court should, if possible, conduct both the public interest immunity application and the subsequent trial. That system depends on the integrity and experience of the court when acting as a tribunal of fact not to permit itself to be influenced by material which may have come to its attention at a public interest immunity hearing. Those qualities are enjoyed as much by lay justices as by stipendiary magistrates, and I agree that there should be no distinction drawn in this respect between those two different constitutions of the magistrates' court.

35. It therefore necessarily follows that the mere fact that justices have heard a public interest immunity application -- even one made ex parte -- cannot be a ground for arguing that they should not hear the trial, because in hearing the trial they will be doing what the authorities just referred to say that they should do.

36. That said, I agree that such cases continue to be subject to a more general rule that a court should recuse itself where it thinks, or should think, that it cannot be confident of doing justice. That may have been the situation that was envisaged in R v South Worcester Magistrates, ex parte Lilley [1995] 4 All ER 186, where at page 191C Rose LJ said:

".... it seems to me that, even when justices have ruled evidence inadmissible there may, in exceptional cases, be circumstances in which that which has been ruled inadmissible is of so highly prejudicial a character that, as a matter of fairness and appearance of fairness, a differently constituted bench ought properly to conduct the trial and an application to that effect could, in such exceptional circumstances, be expected to succeed."

37. Such cases will, in my view, be rare because the court of trial will still be subject to its obligation in the interests of fairly conducting that trial to know what has been excluded and for what reasons. Such cases may therefore in practice be confined to cases where matter has been introduced at the public interest immunity hearing which was not only prejudicial but also irrelevant to a proper consideration of admissibility. That the general practice should be that the same court hears both the public interest immunity application and the trial is reinforced by the difficulty, and in my view the breach of other important rules for the conduct of magistrates' courts' trials, that attend the various proposals for different management of this issue that were put before us.

38. First, it was suggested that where, as here, the offences are triable either way, the magistrates should commit cases where disclosure issues arise to the Crown Court where they can be dealt with by a judge alone. Although, as envisaged in ex parte Smith , there may be cases where the difficulty or weight of disclosure issues might affect the decision as to whether the case should go to the Crown Court, it could not be right either as a matter of principle or from the point of view of practicality to adopt such a policy in cases which otherwise did not justify committal to the Crown Court. The magistrates, having been entrusted with the duty of trying summary cases, must equally be credited with the ability properly to perform every part of that judicial task.

39. Second, the ineluctable difficulty of having one tribunal hear the public interest immunity application and another the trial -- ie that the trial tribunal must, in any event, be informed as to the public interest immunity decision -- cannot be avoided (as was suggested to us) by that information simply being given to the trial tribunal's clerk. The clerk is not the tribunal, and whilst it may be for him to advise, it is not for him to decide, whether reconsideration of rulings on disclosure is required. Further, and even more to the point, the device breaks down in any event as and when he advises that the trial court should revisit the earlier decision.

40. These devices (for I fear that is what I have to call them) are, as I have said, required only to meet a scepticism as to justices' capacity to behave judicially in dealing with the admittedly potentially difficult conjunction of a public interest immunity hearing and a trial. But that is a scepticism that this court has held in ex parte Smith not to be justified.

41. In the present case complaint was made about the difficulties for the defence that were caused by some aspects of the handling of the evidence of the witness Mr Yallop. I saw the force of what was said. But those difficulties are inherent in the very existence of a law of public interest immunity as laid down in the earlier authorities which I have mentioned. They have nothing to do with the incapacity of the justice in this case to conduct the trial.

42. The complaints made about the decision in this case seem to me to be largely based on the mere fact that an ex parte public interest immunity application took place: which, as I have said, is not a valid ground for complaint in itself. If one goes on to ask whether this case falls under the exceptional category where the general rule of bias can be applied, I agree with my Lord that the test is as was set out in Gough: whether there is a real danger of there being no fair trial, that matter to be assessed by the court of review. Since that is a matter of review, as counsel for the applicant agreed in this case the assessment has to be on the basis of whether, in deciding whether he could conduct a fair trial, the magistrate made a decision that was Wednesbury unreasonable. There is no material on the basis of which he could have come to that conclusion. Indeed, for my part, I would have considered a decision on the magistrate's part to refuse himself on the facts of this case to have been perverse, or at least in danger of being described as perverse. It was suggested that he wrongly took into account the fact that he was indeed a stipendiary magistrate. That, as I have held, is an irrelevant factor. But the magistrate only raised that issue, as it seems to me, in the context of the test which he clearly and rightly thought, following Gough, was not the proper test: whether a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial had not been possible. The magistrate said that if (as he thought should not happen) that test were to be applied, then his status as a stipendiary magistrate might be given some weight. An uninstructed bystander in court might well think that whether the justice was a stipendiary or a layman had some relevance. That such a misunderstanding could arise is in my judgement another reason why it is important to use the test of a real danger that no fair trial could take place (as assessed by the court), which as my Lord has said was the test adopted by the House of Lords in Gough, rather than the test of the reasonable and fair-minded person in court to which I have just referred.

43. In this case the magistrate did apply the proper test and in my judgement reached a decision that was inevitable. I also would dismiss this application.

44. MR HAWKESWORTH: My Lord, so far as costs are concerned, I merely ask for legal aid taxation of the applicant's costs.

45. THE LORD CHIEF JUSTICE: We shall make that order. Thank you very much.