England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES

		Cardiff Civil Justice Centre
		22/10/2015

Mr Justice Wyn Williams:

Introduction

1. In these proceedings the Claimant seeks an order quashing her convictions for the offences of common assault and harassment which were recorded against him on 24 October 2014 by District Judge Gwyn Jones sitting at the Llandudno Magistrates' Court. The claim is founded upon two grounds namely that a fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the District Judge was biased and that the Claimant did not have a fair trial before the District Judge thereby infringing her rights under Article 6(1) of the ECHR.
2. On 27 May 2015 Nicola Davies J directed that the issue of permission should be considered at a hearing in open court. At the hearing which was convened before me leading counsel for the Claimant and counsel for the Interested Party agreed that I should proceed as if I was considering the substantive claim. I agreed to adopt that approach and in order to facilitate that approach I permitted the Claimant to adduce further evidence in support of her claim which was provided to me some days after the oral hearing had taken place.
3. At the hearing it became clear that the substance of the Claimant's complaint was that DJ Jones should not have conducted the trial i.e. he should have recused himself and that the complaint that the Claimant's Article 6 rights had been infringed related to that issue. It was not suggested that anything occurred during the course of the trial or in relation to the Judge's conduct of the trial which made the trial unfair.

The facts

4. The alleged victim of each offence was a man called Robert Smith who, at the material time, was employed as a terrierman by the Flint and Denbigh Hunt. The charges arose out of a confrontation between Mr Smith and the Claimant. In the statement of facts and grounds the Claimant is described as "a wildlife campaigner and hunt monitor". The incident giving rise to the offence of assault took place on 28 January 2014. The course of conduct founding the offence of harassment began on 28 January 2014 and continued for some time thereafter and consisted of obstructing Mr Smith's carrying out of his work and posting offensive material about him on the internet.
5. Mr Smith made a witness statement about the relevant events on 16 May 2014. He made a second statement amplifying his allegation of harassment on 2 June 2014. The Claimant was interviewed about her involvement in the offences on 16 July 2014. Shortly thereafter she was charged with the two offences to which I have referred.
6. Prior to trial which took place on 24 October 2014 there was at least one and probably two hearings. At those hearings directions were made so as to ensure that the trial would proceed on 24 October.
7. On 15 October leading counsel then acting for the Claimant sent an email for the attention of the District Judge enquiring whether he had been a member of the hunting/country sports fraternity. A member of the court staff replied on behalf of the judge to the effect that he had not.
8. In her statement dated 15 January 2015 the Claimant asserts that at the commencement of the trial on 24 October 2014 Leading Counsel then acting for her, John Cooper QC, asked the District Judge if he had "any connection with hunting, shooting or field sports generally". She says that the District Judge replied that he did not. There is no reason to suppose that this exchange did not take place.
9. Following the hearing on 24 October 2014 the Claimant's husband sought information about the District Judge via the internet. He discovered that in 2001, when he was in private practice as a solicitor, District Judge Jones represented a man called Craig Evans who had thrown an egg at the then Deputy Prime Minister as a protest against what he perceived to be the continued erosion of rural life. Further in 2007, while still a solicitor in private practice the District Judge had represented William Armstrong, then a terrier man with the Flint and Denbigh Hunt, for an offence under the Hunting Act 2004.
10. On 11 November 2014 Mr Cooper QC sent a long and detailed email to the District Judge. The material parts of the email are as follows:-

"As you will recall, you presided over the trial of [the Claimant] on 24 October 2014.

You found the case proven against her on both counts and the case now falls to be sentenced by you on 11 December.

On 15 October, I emailed you on behalf of the Defendant to respectfully ask whether you had been a member of the hunting and/or country sports fraternity and a member of your staff duly responded on 16 October to say that you had not.

Given the highly sensitive nature of the allegations against Ms Hewitt you would no doubt have appreciated that the perception of independence was vital.

During the course of the trial, evidence established that the Countryside Alliance was involved in furthering the investigation and ultimate prosecution of Ms Hewitt for offences allegedly against a terrierman connected to the Flint and Denbigh Hunt. You will recall three witnesses associated with that hunt gave highly contested evidence, Smith, Griffiths, and Lomax.

Since the trial, it has come to our attention that on at least two previous occasions in your capacity as a solicitor you have represented terriermen associated with the Flint and Denbigh Hunt. In 2001 you represented Craig Evans in the high profile case revolving around an assault upon the then Deputy Prime Minister John Prescott. This assault was connected to the Hunting Act and Mr Evans' strong views upon these matters. In 2007, you represented William Francis Armstrong a terrierman with a Flint and Denbigh Hunt, in a case at Prestatyn.

Both of these matters were associated with hunt or pro-hunt campaigning issues.

The Countryside Alliance have publically stated, from as early as 2003 that they support anyone arrested or charged with breaking Hunting Act related law, especially at trial.

We are also aware that, not only did you represent these individuals in court, you also made supported statements about them to the media, including repeating the views of Mr Armstrong which question "why the authority so devoted resources to a prosecution [he] regarded as unnecessary" and in the case of Mr Evans, making a public statement that civil proceedings were considered against the Deputy Prime Minister.

May we please respectfully ask whether you have any other professional or personal associations with a hunting and/or country sports fraternity, something which was, at the very least implicate in our question of 15 October.

As a result of these matters coming to our attention, we respectfully require you to recuse yourself from the forthcoming sentencing hearing. The connections which we refer to above, in the context of this unusually sensitive case, especially as they indicate representation of staff who worked for the very hunt at the centre of Ms Hewitt's trial and in the case of Armstrong, in an identical position as the complainant, Smith, makes your position as sentencing judge untenable.

Indeed had we been aware of this before trial we would have made the same submission in relation to your possession as trial judge………. "

The email then continued by setting out a brief description of the law relating to bias and independence.

11. During the hearing before me I considered it at least possible that there might be a dispute of fact about what occurred at the sentencing hearing which took place on 11 December. The Interested Party had served and relied upon an affidavit by Ms Jayne La Grua a self employed barrister who was conducting the prosecution against the Claimant. In her Affidavit Ms La Grua described how Mr Cooper QC invited the Judge to recuse himself on the grounds of bias or the appearance of bias and her affidavit continued:-

"6. The District Judge openly confirmed that he had, some years ago when still in private practice, represented the two individuals mentioned in the newspaper articles …….but maintained that any relationship he had with those individuals had been a purely professional solicitor/client one and that he was not now and had never been a member of or associated with "the hunting fraternity". He declined to recuse himself stating that he was more than satisfied that there were no grounds for doing so.

7. The issue was pressed at some length. Indeed, when asked, Counsel for the Claimant indicated that he would require 3 hours to develop his argument. When it became clear that the argument was likely to occupy considerably more court time than the sentencing hearing had been allocated, the District Judge said that he would, for what he described as "pragmatic reasons", enquire with the Lay Justices sitting in the courtroom next door if they would simply swap with him. Counsel for the Claimant agreed with that course of action.

8. The District Judge stressed that he doing what he was doing only for reasons of expediency and the efficient use of court time, both so that the Claimant's sentencing hearing did not come to a standstill and so that the court's other business might be attended to, and not because he was recusing himself or in any way accepting of the allegation of bias or the appearance of bias."

It became apparent at the hearing before me that the Claimant and her representatives had not seen the Affidavit of Ms La Grua even though it was sworn on 9 February 2015. That being so I indicated that I would permit Mr Farrell QC to adduce evidence about the matters referred to by Ms La Grua and make short written submissions in the light of that evidence. I have received a witness statement from the Claimant's husband dated 30 July 2015. Although he takes issue with some of the details provided by Ms La Grua he does not dispute that the District Judge arranged for sentencing to take place before the lay magistrates for reasons of expediency.

The Law Relating to Apparent Bias

12. Mr Farrell QC submits that the law is uncontroversial. He submits that a judge should recuse himself from presiding over a case when the fair-minded and informed observer, having considered all the relevant facts, would conclude that there was a real possibility that the judge in question was biased. This principal emerges, submits Mr Farrell QC, from the decisions in Re Medicaments and Related Classes of Goods (No 2)[2001] 1WLR 700 and Porter-v- McGill [2002] 2AC 357. I agree.
13. Mr Farrell QC also submits that a judge would be disqualified, automatically, from hearing a case on the ground of apparent bias if, on the assessment of all the relevant facts, the conclusion was that the principle of judicial impartiality either had been or would be breached. Such disqualification was not a discretionary case management decision reached by weighing various factors, such as inconvenience, costs and delay. There was either a real possibility of bias on the basis of the appropriate factual assessment or there was not. That, to, seems to me to be entirely correct – see AWG Group Limited and Another –v- Morrison [2006] 1WLR 1163.
14. I record, for completeness, that Mr Mintz for the Interested Party did not suggest any different approach in his written or oral submissions.

Discussion

15. It is common ground that in order to ascertain whether a fair-minded and informed observer would conclude that there was a real possibility that District Judge Jones was biased it is necessary to identify all the relevant factual circumstances. It seems to me that, in the instant case, they are as follows. For many years before his appointment to the Bench, District Judge Jones was a solicitor advocate in private practice. He was a partner in a firm conducting cases throughout North Wales and, in particular, in Denbighshire. He acted, too, as and when required, as a duty solicitor. In 2001, the Judge represented Craig Evans. On 18 May 2001 it was reported in a national newspaper that Mr Evans was a member of the Flint and Denbigh Hunt. There is no evidence now (and there was no evidence available at the time of the trial before the District Judge) that Mr Evans was a member of the Countryside Alliance at that time or, indeed, at all. Mr Evans was legally aided when he was represented by the District Judge. On any view, his membership of the Flint and Denbigh Hunt (assuming he was a member) was entirely peripheral to the incident in which he was involved. In 2007 the District Judge represented William Armstrong. Mr Armstrong was then a terrier man engaged by the Flint and Denbigh Hunt; he was charged with an offence under the Hunting Act 2004. His connection to the Flint and Denbigh Hunt was of obvious significance to the charge which he faced. Although a local newspaper carried a report to the effect that Mr Armstrong would be represented by a solicitor engaged by the Countryside Alliance that was not accurate and the Countryside Alliance had no involvement in Mr Armstrong's case and it did not instruct the District Judge on behalf of Mr Armstrong or pay his fees. The Judge has never had professional or social links with the Flint and Denbigh Hunt (other than to represent Mr Armstrong). He has never been a member of the Hunt. The Judge has no professional or social links to the Countryside Alliance and he has never been a member of the Alliance. On 15 October 2014 John Cooper QC sent an email to the District Judge enquiring whether he had been "a member of the hunting and/or country sports fraternity". On 16 October a member of the court staff replied to the effect that the District Judge had never been a member of the hunting and country sports fraternity. That, it is accepted, was entirely accurate. It is probable that prior to the commencement of the trial Mr Cooper QC asked the Judge whether he had any connection with hunting shooting or field sports generally. The probability is that the Judge said that he had none. In context, that was also entirely accurate. Immediately upon ceasing private practice District Judge Jones took up his appointment. There is no evidence adduced before me about the length of time which he had been in post by October 2014 but it is a matter of public record that he was appointed as a district judge on 11 November 2013. The charges brought against the Claimant were allegations of assault and harassment by her against a terrier man engaged by the Flint and Denbigh Hunt, namely Mr Smith. The alleged assault was alleged to have occurred when Mr Smith was working for the Hunt. The alleged harassment was constituted by messages that were published by the Claimant which criticised Mr Smith for his work with the Hunt. Neither before nor at the outset of the trial did the District Judge volunteer that he had acted for Mr Evans or that he had acted for Mr Armstrong.
16. I have considered, with care, the written skeleton argument produced by Mr Farrell QC for the hearing and also his further written submissions dated 4 August 2015. In the submissions of 4 August, in particular, Mr Farrell QC seeks to persuade me that the District Judge fell into error in failing to disclose the fact that he had acted for Mr Armstrong in 2007. Realistically, in my judgment, he has not pressed the suggestion that it was an error on the part of the District Judge to have failed to disclose his acting for Mr Evans in 2001.
17. I do not consider that the Judge fell into any kind of error in failing to disclose the fact that he acted for Mr Armstrong. The Judge's obligation of disclosure must be seen in the context in which such an obligation arose. In advance of the hearing the Judge was asked, in writing, whether he had been "a member of the hunting and or country sports fraternity". The Judge responded, completely accurately, that he had never been a member of that fraternity. In my judgment there was nothing in that request which triggered the need for the District Judge to disclose that he had acted for Mr Armstrong. Further I do not consider that the oral enquiry made by Mr Cooper QC at the commencement of the hearing should have triggered the response that the Judge had acted for Mr Armstrong. It seems to me to be clear that the requests made of the Judge were intended to elicit information about whether the Judge had any lasting or substantial connection with field sports or the organisations associated with field sports; they were not requests designed to ascertain whether or not the Judge had, in the past, acted as a solicitor for a person associated with such sports.
18. Should the Judge have disclosed the fact that he had acted for Mr Armstrong regardless of the terms of the enquiry made of him? In my judgment he was under no such obligation; perhaps more pertinently the fair minded and properly informed observer would not have expected that he would disclose that he had acted for Mr Armstrong. In the absence of an enquiry of the Judge as to whether or not he had acted for a person or persons connected to field sports I do not consider that the Judge had any obligation to disclose the fact of his acting for Mr Armstrong.
19. Even if I am wrong about that, however, and the District Judge fell into error in failing to disclose that he had acted for Mr Armstrong, I am firmly of the view that no proper grounds existed for him to recuse himself from trying the Claimant. I simply do not accept that the fair-minded observer knowing the facts set out in paragraph 15 above would consider it a real possibility that the District Judge was biased simply by reason of the fact that seven years previously he had acted for a person connected to the Flint and Denbigh Hunt. The fact that Mr Armstrong was a terrier man when he was represented by the District Judge and that the Complainant Mr Smith is also a terrierman would not, in my judgment, alter the view of the fair-minded observer.
20. Not surprisingly, Mr Farrell QC sought to make much of the fact that the District Judge decided that the Claimant should be sentenced by lay magistrates following a submission by Mr Cooper QC that he should recuse himself. Mr Farrell QC submits that if it was appropriate for the District Judge to recuse himself in respect of sentence it was also appropriate for him to recuse himself in respect of the trial.
21. On the whole of the evidence adduced before me I am satisfied that the District Judge did not recuse himself from passing sentence because he acceded to a submission that the fair-minded observer would conclude that there was a real risk of bias. It seems clear to me that the District Judge, quite deliberately, chose to arrange for sentence to be imposed by lay magistrates simply so as to avoid a protracted hearing about whether he should recuse himself and so that court time could be used as efficiently as possible i.e. he took what may be described as a pragmatic decision.
22. I understand why the District Judge acted as he did but, in my judgment, he should not have done so. As I have found, there was no reason for the District Judge to recuse himself in respect of the trial and it must follow that there was no proper basis to recuse himself in respect of sentence. As time consuming as it may have been to hear Mr Cooper's submissions about apparent bias, the proper course was for the District Judge to have heard argument about whether he should recuse himself. On the basis of the arguments advanced in this case, as I have found, there was no basis upon which he should have done so.
23. I have reached the clear conclusion that no proper grounds exist to quash the Claimant's convictions and accordingly this claim is dismissed.