England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		7th May 2008

1. MR JUSTICE UNDERHILL: There are two applications before us today arising out of the same history, which I shall begin by setting out. On 25th October 2007, there was an incident in a park in Bristol between the claimant on the one hand and a woman, Ms Waetjen, and her companion, Mr Ballantyne, on the other. The claimant said that he had been bitten by Ms Waetjen's dog. Ms Waetjen said that the claimant had assaulted her, although the claimant tells us that the highest she ever put it was that he had given her a "gentle shove". The incident allegedly then degenerated, with the claimant acting, it is said, in a threatening manner. The police were called and the claimant was arrested. He was in due course charged with common assault and with threatening behaviour contrary to section 4 of the Public Order Act 1986. He pleaded not guilty. At a pre-trial review on 20th February 2008, the claimant complained to the Deputy District Judge, Judge Bennett, of various aspects of the procedure and in particular (1) that the prosecution was not proposing to call all of the police officers who had been present when he was arrested, specifically a PC Richards and (2) that no investigation had been carried out by the police into whether Ms Waetjen's dog had a propensity to attack people. The judge declined to issue a witness order requiring the attendance of any other officers or to stay the proceedings in the absence of the further investigation into the characteristics of the dog which the claimant sought.
2. The first of the two sets of proceedings before us was issued on 13th March 2008, seeking judicial review of those decisions on the part of the District Judge. The claimant was not represented by solicitors and drafted the claim form himself. The orders which he sought on the claim form were:

"(1) An order of mandamus requiring Magistrates to issue witness summons to police officers present at the incident in question.

(2) Order of mandamus requiring investigation, including vet documents re counter-allegations of attack from dog owned by prosecution witness Waetjen."

Mitting J refused permission on the papers on 2nd April 2008. A renewed application for permission was heard by Burton J on 9th April. He ordered:

"1. This application is refused on Ground 1.

2. Ground 2 be adjourned to come on inter partes.

3. The Claimant's application to stay proceedings in the Magistrates Court be refused."

The pleaded grounds are not in fact enumerated as 1 and 2 but it is accepted by the claimant (who appears before us in person) that the ground which had been allowed to proceed to an inter partes hearing was that relating to the unavailability of the evidence of the police witness, and that the ground which had been dismissed was the one relating to the failure of the police to investigate the characteristics of the dog.

3. The hearing before us today was originally listed as the inter partes hearing ordered by Burton J. However, things have moved on since then. The trial in the Magistrates' Court proceeded on 10th and 11th April before Deputy District Judge Morgan; and the Crown decided in effect to short-circuit the issue raised by the judicial review claim by making PC Richards available for cross-examination. The trial proceeded and the claimant was convicted. We have a note of the judge's judgment, apparently supplied to the claimant very recently by the clerk to the Magistrates' Court. The last page has been retyped by the claimant because, he tells us, he failed to photocopy it. In the version that we have -- and, he tells us, in the original it is not authenticated by any signature either from the clerk or from the judge. That is not an ideal state of affairs, but in the event it has not given rise to any difficulty for the purpose of this hearing, and I would therefore decline the invitation which the claimant made that we should adjourn the hearing until an authenticated version of the note can be obtained.
4. In view of the course taken at the trial, and specifically the calling of PC Richards, the hearing ordered by Burton J has become academic. As a result, the Crown Prosecution Service, who were the interested party, have not appeared. The claimant accepts that the original point which he wished to advance has indeed now been superseded, though he says that a related point is still live.
5. The second matter before us is an application for judicial review of his conviction at the trial. Proceedings were filed on 25th April 2008 and on 2nd May Saunders J, having considered the matter on the papers, adjourned the application for permission to this hearing, which of course had already been fixed pursuant to the order of Burton J. The claimant tells us that he has also lodged an appeal against his conviction to the Crown Court but he says that the matters which he wishes to raise on the application for judicial review are more appropriate to be heard in this forum.
6. The basis of the claim in these second proceedings is apparent or actual bias on the part of Judge Morgan. We at present have only the facts as stated by the claimant. If it had been necessary for those to be investigated, it might have been necessary to adjourn the matter so as to obtain a response, either from the court or from any interested party, but it is in fact, it seems to me, possible to deal with the application on the assumption that the facts stated by the claimant are correct. Those can be summarised as follows:

(1) On at least one occasion prior to the events which gave rise to the present proceedings, the claimant had used the services of a firm of solicitors in Bristol called Allen Hoole.

(2) Immediately following his arrest on 25th October 2007, he had the services of a Mr Whitlow of Allen Hoole, who happened to be acting as the duty solicitors on that occasion.

(3) On a date which we do not have but which was at some point in the second half of 2007, the claimant made a complaint to the Legal Complaints Service about the service which he had received from Allen Hoole in relation to the earlier matter. This led to a settlement, brokered by the Legal Complaints Service, under which Allen Hoole offered to pay £600 to the claimant by way of compensation for poor service.

(4) Judge Morgan is a member of the Bar, who works from chambers in Bristol and also sits as a Deputy District Judge.

(5) The claimant ascertained from the court staff in the course of the hearing that Judge Morgan was indeed a barrister and he raised with him on the second day the possibility that there might be a conflict of interest insofar as he had been instructed by Allen Hoole and was aware of the complaint which he, that is to say the claimant, had made against that firm.

(6) The judge declined to recuse himself. He said, according to the note of the judgment to which I have referred earlier (under the heading "additional reasons)":

"During the trial Mr Gray made an application to DDJ Morgan that he should withdraw from the proceedings due to his association with Allen Hoole Solicitors.

Application refused."

There then follows what is clearly a note of what the judge said:

"Mr Gray I am not aware of their interest and do not wish to know of any complaint you may have with Allen Hoole. I am a barrister who prosecutes and defends in this area and have acted for many clients some of whom may have instructed Allen Hoole solicitors. No conflict has arisen."

(The claimant finds the form of words "some of whom may have instructed Allen Hoole" odd, since, as he observes, one would expect a barrister to know what firms of solicitors he had been instructed by. His recollection is that Judge Morgan said in terms that he had indeed sometimes been instructed by Allen Hoole. I agree that the claimant's recollection is more likely to be correct as to what the judge meant. Whether or not he used the subjunctive, and if so why, seems to be a matter of no importance. I am certainly, in any event, prepared to proceed on the basis that the claimant's recollection is correct.)

7. Those are the essential facts. The claimant submits that those facts by themselves are sufficient to raise a case of apparent bias on the part of the judge. The way he puts it in his combined skeleton argument and grounds is that "there was a very real possibility that DDJ Morgan would be biased in terms of seeking redress for the Claimant having brought his close permanent colleagues and de facto employees into disrepute". That way of putting it is not, of course, accurate. Members of a firm of solicitors are not employees of barristers whom they instruct, and there was no material to suggest that they were his "close permanent colleagues". But the basic point, as the claimant has confirmed to us, is that he says there was a real possibility that the judge had heard from Allen Hoole of the complaint which he had brought against them and that, because of his professional relationship with that firm, he would or might be biased against the claimant on that account.
8. I do not believe that the facts alleged raise even an arguable case of apparent bias. Allen Hoole were not a party to the proceedings, nor was any of their partners or staff a witness, and the nature of the claimant's case did not involve any criticism of them. There is indeed what is described as a postscript to the note of the judgment, which reads as follows:

"Their conduct did not form part of any evidence in the trial. They were not mentioned at all by any witness, including the defendant, during the giving of evidence."

That is hardly surprising, since Allen Hoole had nothing to do with any of the issues. In these circumstances, a fair minded observer would not in my view perceive any risk that the judge would be biased against the claimant simply because he had in fact made a complaint against Allen Hoole.

9. The claimant says, as I have already noted, that there was a risk that Judge Morgan may have known about his complaint against Allen Hoole and its successful outcome. That is entirely speculative and on the face of it not very likely; but in any event the short answer, and in my view a wholly conclusive answer, is that the judge said in terms that he had no knowledge of the matters which the claimant wished to rely on and did not wish to be told about the complaint. That, as I say, is conclusive.
10. The claimant referred us to a passage from Stone's Justices' Manual citing the well-known authorities in this field. I see nothing in that passage or in any of the cases referred to which leads me to any different conclusion. He relied, in particular, on the case of R v Cambridge Justices ex parte Yardline Limited and Bird [1990] Crim LR 733. That, however, is a case of an entirely different kind, where one of the Justices was a partner in a firm which acted regularly for one of the parties.
11. The claimant seeks to reinforce his case on bias by making a number of criticisms of the judge's findings of fact in the short judgment which he gave. He says that those findings are so perverse that they can be regarded as an indication of bias. The factual issues decided by the judge can of course be revisited on the appeal to the Crown Court and I say nothing about whether his findings were right or wrong; but I can see nothing in them which is even arguably capable of supporting a case of bias. It is not necessary or proportionate that I should go through them all but I will address briefly those which the claimant primarily emphasised.
12. The first point which he made was that it was necessarily, as he put it, "extreme bias" for a judge to accept the word of one witness against another (and indeed find that one of them had lied) - which the judge did in relation to the initial incident between himself and Ms Waetjen: how, the claimant asks, can he tell who is telling the truth? I cannot accept that. Justices and juries do regularly, and can properly, make findings of guilt in such circumstances.
13. Secondly, he relies on a letter which he has received from the Avon and Somerset Constabulary, dated 22nd April 2008 (that is to say, since the trial) which, in answer to some questions from him, sets out the procedure followed where there has been a complaint of a member of the public being attacked by a dog. He says that the answers given in that letter show that that the police had available to them means of investigating whether a dog had a propensity to attack people. Whether that letter goes quite as far as the claimant believes, the important point is that it cannot show bias for the judge to have had no regard to it since it was not before him at the trial. In any event, the failure to investigate the alleged propensity of the dog to attack people is a point on which permission has already been refused by Burton J.
14. Thirdly, the claimant draws attention to a passage in the note of the judgment in which the judge is recorded as saying:

"Self-defence - not applicable to common assault but it is applicable to section 4 offence..."

I agree that if that is to be read as a proposition of law that self-defence is not available as a defence to a charge of common assault it is plainly wrong. I think, however, that it is extremely unlikely that that is how it ought to be read. Notes of this kind are not always entirely accurate and I strongly suspect that what was intended was an observation on the availability of the defence of self-defence on the particular facts of this case. But in any case being advanced as one of bias, what matters is not precisely what the judge may have said but whether it is conceivable that he deliberately and openly gave himself a patent misdirection of law in order (consciously or subconsciously) to do the claimant down. I do not believe that that is remotely conceivable.

15. Fourthly, the claimant relies on the fact that the judge did not deal with a number of alleged contradictions in the evidence of the prosecution witnesses which he had drawn attention to in his closing submissions. That too I cannot regard as any evidence of bias. Judges are not obliged to deal with every point that parties may make before them.
16. Finally, I should mention a further point which only emerged today. The claimant has submitted to us that, although PC Richards was in the end called to give evidence, Judge Bennett's original decision not to require him to be called was prejudicial to him, the claimant, because it led to a long delay in a statement being taken from PC Richards and he says that that is further evidence of bias on the part of Judge Morgan. I can see no arguable point here. I do not see how a decision made by Judge Bennett can be evidence of bias on the part of Judge Morgan. I would add, perhaps unnecessarily, that I can in any event see nothing wrong with Judge Bennett's original decision, for the reasons succinctly given by Mitting J when he refused permission on the papers (which I will not lengthen this judgment by reciting here).
17. For all those reasons, I would refuse permission in the case of both applications for judicial review. The claimant had originally sought a stay on the sentencing hearing, which is due to take place on 9th May, but he made it clear that he based that entirely on his case of potential bias against Judge Morgan. Having found that there is no arguable case of that kind, I do not for my part see how that application can be maintained and I would not grant a stay.
18. MR JUSTICE OUSELEY: I agree. Accordingly, the two applications for permission to apply for judicial review are dismissed and there is no stay ordered in the sentencing process. Whether the Deputy District Judge proceeds with the sentencing process in the light of the outstanding appeal against conviction to the Crown Court is a matter for the Deputy District Judge.
19. I am grateful to Mr Gray for his eloquence.
20. MR GRAY: My Lord, I am not exactly sure of the procedure from this moment on. Is there any leave or permission to pick up on a few of the points that were made by the judge that may actually be --
21. MR JUSTICE OUSELEY: No. We do not entertain a debate about our judgments.
22. MR GRAY: No, it was not a debate, it was just -- as this hearing is final, as far as I understand, the Court of Appeal excepted that I was going to make -- if there is no possibility of pointing out any discrepancies in Mr -- I did not catch the name, I am sorry -- but in his Lordship's view or statements, what I would request, possibly, is, certainly in terms of as this application was brought under the Human Rights Act, I, for my own part, would be very grateful for a copy of the judgment at public expense, simply for this, because I am on fees exempt and I do have a right to appeal to the European Court of Human Rights where there is substantial difference in the judge's view. Furthermore, my Lord, as you can see, I do not have a great party of followers behind me and this is a very quiet proceeding, in terms of proceedings, as such; not even a court reporter is present. My only recourse is to campaign the issue in and around the Bristol area, to publish all the documents I have and, obviously, I think it would be in the interests of all fairness if the reasons for refusing, on the grounds that were given today, were -- I did have the opportunity of, rather than put my own version to the public, at least the court should be allowed to state what their reasons were officially, lest I get something wrong or make a mistake, when I publish the issue. But --
23. MR JUSTICE OUSELEY: Forgive me, Mr Gray --
24. MR GRAY: Sorry, so, my Lord -- can I just finish? Literally two seconds from finishing. My main point is in relation to my right to appeal to the European Court of Human Rights. Judges need to have sight of what the judgment was in this court.
25. MR JUSTICE OUSELEY: Was there a discrepancy or an error that you wish to point out in my Lord's judgment; not on the judgment itself, but was there an expression used or mistake of fact that could be corrected, if we can correct the transcript?
26. MR GRAY: In terms of what was said, my Lord --
27. MR JUSTICE OUSELEY: You may disagree with it.
28. MR GRAY: Factually incorrect, for just one small incidence, it was stated that I raised the issue that the judge was familiar to me or had worked as a barrister. That was on the second day as well. I did not raise the issue on the first day of trial. That was made clear in proceedings.
29. MR JUSTICE UNDERHILL: I think what I said, Mr Gray, and I thought this is what you told us, was that you raised it with a member of staff on the first day, the question about why you recognised Mr Morgan. You were then told he was a barrister and that was the basis on which you raised the question with him on the second day. Is that not right?
30. MR GRAY: No, my Lord. You can check with the tapes. I made no assertion that anything had occurred on the first day.
31. MR JUSTICE UNDERHILL: If you are saying both things happened on the second day, that can be easily corrected.
32. MR GRAY: It is a very trivial matter and obviously my main concern is, for instance, that your Lordship did not refer to the fact that there is also an issue of duty to disclose, which is part of my submission. There is obviously -- bearing in mind, my Lord, I am sure you will see, I am very tired, I have been up 16 hours. I am a defendant in person. This is a rather nerve-racking experience, I am sure you would appreciate. I was really gobsmacked at the decision, I have to say. I would only request that -- if here the matter ends, in this court process, and the only option to me would be -- I do not even know if it is legally tenable to make a reapplication to ask the court to address the points of law and the various issues that have not been addressed today.
33. MR JUSTICE OUSELEY: No, you cannot do that.
34. MR GRAY: No. If that is not legally open to me, and I understand that is the case, my only option is the European Court of Human Rights. As far as I am concerned, there is a major issue her of conflict of interest and certainly --
35. MR JUSTICE OUSELEY: One moment. (pause) OK, yes. Carry on.
36. MR GRAY: My Lord, I think that -- I am aware that your Lordships have been in the courtroom for a long, long time as well. I do not want to push anything further. My Lord, I only request, in great humbleness, if I could have a copy of the transcript of the judgment. There is a major -- I would suggest there is not just a personal issue with regard my own rights, my Lords, there is a major issue of public interest here.
37. MR JUSTICE OUSELEY: Well, I do not think there is, as far as I can see. I am concerned that you are seeking it simply to use it as part of a campaign. That is not a proper basis for the taxpayer to finance it.
38. MR GRAY: My Lord, in response to that, my main issue is I am going to seek permission to the European Court of Human Rights, as is my right. My Lord, obviously I --
39. MR JUSTICE OUSELEY: I am not sure -- you ought to take advice as to whether there are any other domestic procedures available to you.
40. MR GRAY: Well, my Lord, I have asked the gentleman here and you are, my Lord, the highest legal authority in the land.
41. MR JUSTICE OUSELEY: Not yet, I am not.
42. MR GRAY: And if I cannot get it from you, my Lord, I am not going to get it from Mr Hoole or anybody else from Allen Hoole et cetera. My Lord, the only point in question, I put it no higher than this: I have brought this application under the -- the statute I referred to refers to section 6(1) of the European Court of Human Rights --
43. MR JUSTICE OUSELEY: Well, that does not alter your appeal rights.
44. MR GRAY: No, my Lord, as far as I can ascertain, my only -- this is not a civil matter, this is a criminal matter, it ends here. This issue arises -- further evidence arises from the Crown Court trial, which would obviously shed new light on the matter, but certainly in terms of the proceedings that we have today, I only request, in all humbleness, for a copy of the judgment at public expense, primarily to put before the European Court of Human Rights.
45. MR JUSTICE OUSELEY: I am just going to check.
46. MR GRAY: I am grateful to my Lordship. (pause)
47. MR JUSTICE OUSELEY: Yes, House of Lords only. Yes, the only way you can take this further is if you make an application to us to certify a point of law of general public importance. If you were to do that, I for my part would refuse and, in the light of what my learned brother has said, he would refuse as well. So you may be right, your only recourse is now the European Court of Human Rights. It is the home of lost causes and people think that they will get a result there in circumstances where it is extremely optimistic.
48. MR GRAY: Well, my Lord. It is a simple point of fact that --
49. MR JUSTICE OUSELEY: There will be a transcript at public expense.
50. MR GRAY: I am grateful, my Lord. Thank you very much.
51. MR JUSTICE OUSELEY: Thank you.