QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF GILL||(CLAIMANT)|
|LORD CHANCELLOR'S DEPARTMENT||(DEFENDANT)|
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MR G CLARKE (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
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"He approached me on a Tuesday evening indicating he would like a word. I can't remember the exact date. I replied 'yes, what do you want?' He said he wanted a word in private. We spoke alone in the kitchen. He believed the installation of the cameras was lowering the value of properties in the area. Mr Gill is an Estate Agent. There had been an incident where a fight had spilled into the car park and he told me he had informed the police. He held me responsible. He said to me 'Do you know I am a magistrate? I could have a word in someone's ear and get your licence revoked' I told him he was out of order. He replied 'You know what I mean'."
Mr Glover made a complaint about the incident which he was describing. He took the view that it was wholly inappropriate for a magistrate to say what he attributed to Mr Gill. If indeed Mr Gill did utter those words, then no one would take issue with that view. It is, of course, not for me to form any view as to whether he uttered the words or not. It is apparent that in evidence to the Panel Mr Gill denied using those or similar words and denied using any words that might be said to have been unbecoming of a magistrate.
"a) He gave his evidence in a completely straightforward, compelling and convincing manner (b) Under cross-examination he did not contradict himself nor lessen the cogency of his testimony
(c) He genuinely appeared to be threatened and intimidated by Mr Gill's remarks
(d) No motive or explanation was established to explain or suggest why Mr Glover should have invented or be mistaken about what had happened or was said."
The Panel went on to say:
"We therefore found as a fact that Mr Gill did say to Mr Glover "Do you know I am a Magistrate?' I could have a word in someone's ear and get your licence revoked."
On the basis of that finding the Panel, unsurprisingly, concluded that that was conduct which was wholly inappropriate and a serious abuse of judicial office, which, if let unchecked, would undoubtedly undermine public confidence in the courts and in the integrity and propriety of lay magistrates and in the judicial system. The Panel considered that it had no alternative but to recommend to the Lord Chancellor the removal of Mr Gill from office. As I have related, the Lord Chancellor accepted that recommendation.
"My Committees, for their part, are entitled to look for clear instructions on how they should discharge their important public duties. These new directions provide that information. They will, I believe, ensure that the best practice is followed by all Committees; that there is consistency of approach; and, as importantly, that the public may now have confidence in a system which is, so far as practicable, both open and accountable."
It is apparent from a number of points in the guidelines that the Lord Chancellor expects them to be followed. In the introduction, in a passage relating to the selection process, it is spelt out:
"Whilst there must be a standard and consistent approach to the selection process, it is not immutable and where, following careful consideration, change is considered necessary, amendments to these Directions will be issued. The Lord Chancellor does not, however, expect any departure from their provisions without his express approval."
The part of the guidelines which relate to this case is to be found in Chapter 19 which is headed "Conduct and Competence". It includes procedural provisions for application when a magistrate is the subject of complaint. The procedure before the Panel is referred to in the guidelines as a "Complaints Investigation Hearing." Paragraph 19.15 is in these terms:
"Those taking part in complaints investigation hearings must always have in mind that they involve members of the judiciary. Moreover whilst they are not in themselves trials or tribunal hearings, every care must be taken to ensure that the principles of natural justice are observed and that the proceedings are seen by the magistrate, or others attending the hearing, as fair and such as to withstand the test of any subsequent judicial scrutiny. A record of the proceedings must always be kept."
That may be accurately summarised as a general provision for fairness in the obvious sense of fairness to both sides.
"The hearing should generally take the form of an enquiry by three or four persons drawn either from the Advisory Committee or its Sub-Committees and should normally consist of:
. a chairman who may be the Chairman of the Advisory Committee or his or her nominee
. two or three members, who, as far as practicable, are not members of the same bench as the magistrate being seen and in any event at least one of whom must be from a different bench.
. wherever possible, a non-magistrate member
. the Secretary of the Advisory Committee or his or her representative
. in some cases it may be appropriate for the panel to be chaired by a Circuit Judge. Advice in this regard may be obtained from the Deputy Secretary of Commissions
. it will sometimes be necessary, in the interests of justice, to hear from others who may be able to provide evidence in relation to the allegations. Such persons may, if they wish, be accompanied but unless there are wholly exceptional circumstances they should be expected to speak for themselves."
"Two or three members who, as far as practicable, are not members of the same bench as the magistrate being seen and in any event at least one of whom must be from a different bench."
He says that if he had known of the procedure at the time he would have objected to the Panel as it was constituted. His case is that he had a legitimate expectation that the Panel would be constituted in accordance with prescribed procedures, and that that expectation has been breached.
"The Direction that was not complied with sets out the normal procedure for investigating complaints. It does not set out a mandatory procedure.
The normal procedure could not be fully complied with in this case as the Newcastle Upon Tyne Advisory Committee is only responsible for one bench and consequently has no members or Sub Committee members from different benches upon whom it may call for assistance. Although I accept you had a legitimate expectation as to the normal procedure to be followed, that one member of the panel would be from another bench, I do not consider it was unfair or inconsistent with good administration that your expectation could not be met on this occasion. I do not believe any unfairness resulted from the fact that the magistrate members of the panel were from your own bench. There is no suggestion that the panel had pre-judged the [issues] involved. They heard conflicting evidence, and did not believe yours.
I do not accept that the investigation procedure was unfair in the sense of being contrary to any legal principle or otherwise, and I do not believe it would fail the test of judicial scrutiny. The procedure observed the rules of natural justice..."
However, there are guidelines. They contain two mechanisms designed to achieve independence and impartiality. The first concerning the presence of a non-magistrate, was complied with in the present case. The second, relating to the introduction of an element of external representation amongst the magistrate members, was not complied with in the present case. There has been, at different stages, some reliance placed by the Lord Chancellor upon the actual wording of paragraph 19. I take full account of the facts that these were guidelines, neither more nor less, and that they are permeated with the language of "generally", "normally" and "as far as practicable". However, I also attach significance to the words "in any event" and "must" in the vital passage. Those words seem to me to have a significance to which this court ought to attach weight. Moreover, if one stands back and asks whether a panel of five, none of whom was a magistrate from a different Bench, and only one of whom was a non-magistrate, was consistent with the letter or spirit of paragraph 19.16, I have to say that, in my judgment, it was not. One only has to test it this way, as Mr Gill invites me to do: if the Panel had taken the opposite view of the evidence and had found in favour of Mr Gill, I have no doubt that upon subsequently discovering the guidelines Mr Glover would have had an unanswerable application for judicial review. On behalf of the Lord Chancellor Mr Clarke submits that, if so, that would be on the ground of apparent bias. But I do not think it would be so limited. It would also be on the basis of a breach of his legitimate expectation that the procedure referred to in the guidelines had not been followed.
"We draw your attention to an error in our claim form. At page 3 there is a question regarding whether any issue arising from the Human Rights Act is relevant although the answer 'no' has been entered it should in fact be yes."