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
		15 October 2009

1. LORD JUSTICE PILL: This is an application for judicial review of the decision of the Wolverhampton Youth Court, whereby, on 27 June 2008, they refused an application made on behalf of "B", to overturn their finding of guilt and direct a new trial before a differently constituted bench. The bench whose decision is challenged has convicted the applicant of an offence of taking a pedal cycle without consent on 4 April 2008, contrary to section 12(5) of the Theft Act 1968. The bench was properly constituted and I have no doubt its members were aware of their duty under section 44 of the Children and Young Person's Act 1933, to, "have regard to the welfare of the child or young person".
2. At the material time the applicant was 15 years old, he was represented before the Justices by a solicitor, Miss Kelly, and was accompanied by his mother who is the Next Friend in these proceedings.
3. The application is made on the ground that there was an appearance of bias in the bench which decided to convict. That arose, it is submitted by Mr De Mello on behalf of the applicant, from the conduct of the bench on the day of the hearing. Madam Chairman -- I hope I can refer to her in that way without giving offence -- taught in a school at which the applicant had formally been a pupil. The school was a medium size comprehensive; the alleged offence did not involve the school and was not committed at the school.
4. Unfortunately there is a dispute of fact as to what happened. A statement has been filed on behalf of the bench, their account is that at a pre-court briefing on the day, Madam Chairman informed the legal adviser to the court, Ms Kandola, that she recognised the applicant's name as that of a pupil at the school at which she had taught. She had neither taught him nor had any dealings with him. There is no evidence to cast doubt upon that statement.
5. While the bench was considering another case, the legal adviser informed Miss Kelly of the facts relayed to her by the Chairman and asked Miss Kelly to check whether the applicant had attended the school in question. When the applicant's case was called on nothing was said about the disclosure which had been made. The trial proceeded before and then after the midday adjournment; the bench retired to deliberate, returned to court and announced their decision. Miss Kelly asked for time to discuss matters with her senior partner as something had arisen. The Justices retired. Miss Kelly told the legal adviser that the applicant had informed her while the Justices were considering their verdict that he recognised the Chairman.
6. Miss Kelly submitted that there should be a new trial, a course opposed by the CPS prosecutor present. When the bench returned, Miss Kelly told them that while they were in retirement she had been told that the applicant had recognised the Chairman and that there should be a new trial. Mention was made of the discussion between the legal adviser and Miss Kelly before the trial began. The prosecutor objected to a new trial which would necessitate young witnesses again attending court. Miss Kelly was asked if she was alleging bias and Miss Kelly simply repeated her request for a new trial.
7. Having retired to consider the request, the bench declined to set aside the verdict. Madam Chairman repeated that, while she had recognised the applicant's name, she had had no personal dealings with him and had made those facts known to Miss Kelly via the legal adviser before the case had been called.
8. Miss Kelly's account is different in significant respects. She says:

"Before the trial she was informed by the legal adviser that the Chairman wanted to know which school the applicant attended as she recognised his name. She asked him and communicated the answer to the legal adviser".

9. Miss Kelly says that nothing further was communicated to her and she was most certainly not told whether or not the Chairman had taught the applicant, or whether or not she had had any personal dealings with him. It was only when application for a fresh trial was made that these things were mentioned.
10. Mr De Mello submits that because there can be no opportunity to cross-examine the Justices, the applicant's account of events on the day should be accepted.
11. I do not consider it, in itself, to be a bar to a Magistrate hearing a case that she taught at a school where someone appearing before her had formerly been a pupil. Nor would it normally be a bar if a Justice had previously dealt with someone from the same family. It would depend on the circumstances. In this case, the Magistrate recognised the applicant's name but had had no dealings with him. On the Justices' account, an appropriate disclosure was made to the applicant's solicitor; it was then for the solicitor to take instructions and make any application. Unless new considerations then arose, the Justices would have been entitled to refuse an application for a new trial before a different bench. I do not consider that the circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the court was biased.
12. I refer to the test to be applied in the circumstances; Mr De Mello submits that it is appropriately stated in the decision of this court in AWG Group Ltd v Morrisson [2006] 1 WLR 1163, the leading judgment being given by Mummery LJ. Mummery LJ considered earlier authority and stated, at paragraph 7:

"The test for apparent bias now settled by a line of recent decisions of this court and the House of Lords is that, having ascertained all the circumstances bearing on the suggestion that the judge was (or would be) biased, the court must ask 'whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility ... that the tribunal was biased'."

Mummery LJ added, at paragraph 20:

"As already indicated, however, I do not think that disqualification of a judge for apparent bias is a discretionary matter. There was either a real possibility of bias, in which case the judge was disqualified by the principle of judicial impartiality, or there was not, in which case there was no valid objection to trial by him. On the issue of disqualification an appellate court is well able to assume the vantage point of a fair-minded and informed observer with knowledge of the relevant circumstances. It must itself make an assessment of all the relevant circumstances and then decide whether there is a real possibility of bias."

13. On Miss Kelly's account, the issue is less clear cut. On her account, she was only asked to name the school the applicant attended and was not given the reason for the request for information, though I do find it somewhat surprising that upon receiving that request she did not ask for further particulars. On her account, the applicant's mother told her during the Justices' retirement that the applicant had just told her that the Chairman worked at the school he had previously attended. If Miss Kelly is right that mother had not been told earlier, the Justices could not know, when it occurred to B, that the Chairman had taught at his former school. On Miss Kelly's account, the only complaint that can validly be made is that she should have been given fuller information before the trial commenced.
14. Mr De Mello's submission, on that account, concentrates upon the failure of the Chairman, having asked for the name of the school, not to say why she wanted to know. Failure to do so left the applicant with a legitimate sense of suspicion, he submitted. Was it because the name, which is neither a common nor a very unusual name, had a bad reputation at the school? If so, the Magistrate should have recused herself, in his submission. There is no evidence that the name had a bad reputation. The facts did emerge at the end of the hearing when Miss Kelly was making the application for a retrial. There was no challenge to the evidence of absence of dealings between the Chairman and the applicant and no evidence to cast doubt upon what she had said.
15. I accept that a question left hanging in the air, as Miss Kelly claims the question to her was, would not have been a satisfactory way to proceed. However, I have come to the conclusion that, even on Miss Kelly's account, a new trial was not required. Had an application been made with full information before the trial, the Justices would have been entitled to refuse it, as they subsequently did. The failure to disclose the reason for the request for information, even if there was such a failure, does not itself create an appearance of bias. Neither does the absence of knowledge in the applicant and his solicitor, if there was such an absence at an earlier stage, that the Chairman was a teacher at a school he had formerly attended. Even if the full circumstances were disclosed only after conviction, I do not consider that, in all the circumstances, a fair minded and informed observer would conclude that there was a real possibility that the court had been biased. On that finding, there is no need to decide which of the accounts of events is accurate.
16. I add that, to minimise the risk of disagreements in recollection in similar situations, a legal adviser should make a contemporaneous note of information disclosed by Justices with a view to it being passed to the defendant's advocate before the trial.
17. I would refuse this application.
18. MRS JUSTICE RAFFERTY: I agree.
19. MR DE MELLO: The claimant has the benefit of a Legal Aid Certificate.
20. LORD JUSTICE PILL: You have the usual direction.
21. MR DE MELLO: Thank you.
22. LORD JUSTICE PILL: We are grateful to you for your submissions.