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Cases - judges
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Barnsley JJ ex p Barnsley LVA [1960] CA

Bentley, R v (1998) CA

Bradford v McLeod [1986] HCJ (Scotland)

Bromley LBC v Greater London Council [1982] CA & HL

Congreve v Home Office [1976] CA

Dimes v Grand Junction Canal (1852) HL

Goose v Wilson Sandford (1998)

Gunning, R v [1980] CA

Hoekstra v Lord Advocate (2000) HCJ (Scotland)

Home Secretary ex p Fire Brigades Union [1995] HL

Inner West London Coroner ex p Dallaglio [1994] CA

Jones v National Coal Board [1957] CA

Locabail v Bayfield Properties [2000] CA

M v Home Office [1993] HL

Marylebone Magistrates' Court ex p Perry (1992) DC

R v W (1993) CA

Re Pinochet [1998] HL; [1999] HL

Renshaw (1989) CA

Sanders v Chichester (1994) QBD (Election Court)

Secretary of State ex p Avon CC (1990)

Secretary of State ex p Smith [1996] CA

Sirros v Moore [1974] CA

Starrs v Procurator Fiscal (1999) HCJ (Scotland)

Weston-super-Mare JJ ex p Taylor [1981] DC

Whybrow & Saunders [1994] CA

Worcestershire JJ ex p Daniels (1996) DC

Barnsley JJ ex p Barnsley LVA [1960] CA

[Judges must not appear to be biased or impartial]
Barnsley Co-Op applied for and was granted an off-licence, but it later appeared that of the seven justices who had dealt with the application, six were members of the Co-Op Society and the seventh had a wife who was.

 

Held: Statutory provisions preserved the validity of the licence: the procedure had been irregular, but there was no real likelihood of bias because the extent of the justices' financial interest was so small.

 

Bentley, R v (1998) CA

[Role of judge – to listen – keep order – clear up ambiguities]
Derek Bentley’s next of kin appealed against his conviction and execution for murder in 1952.

 

Held: The trial judge, Lord Goddard CJ had, in his language in summing-up been that of an advocate rather than of a judge.

 

He had indicated clearly that the police witnesses deserved the thanks of the community and should not be branded as liars by a failure to accept their evidence.

 

Apart from significant omissions in the judge's directions on matters of law, this had clearly been enough to deny D the fair trial to which he was entitled.

 

Pardon recommended

Bradford v McLeod [1986] HCJ (Scotland)

[Judges must not appear to be biased or impartial]
A sheriff had said to a solicitor on a social occasion that striking miners should not be given legal aid.

A miner was convicted of a breach of the peace on picket line.

 

Held: This was enough to create a reasonable suspicion of bias, whether there had in fact been any bias or not. Given his publicly expressed views, the sheriff should have disqualified himself from hearing the case.

 

Conviction quashed

Bromley LBC v Greater London Council [1982] CA & HL

 

[Judges must not appear to be biased or impartial]
The Labour-controlled Greater London Council implemented a "Fares Fair" policy in which public transport fares were subsidised from the rates. A Conservative-controlled council sought certiorari to quash this decision, claiming that the GLC had acted ultra vires.

 

Held: Lord Denning MR said all three members of the Court were interested on all sides.

 

All were fare-paying passengers on the tubes and buses, benefiting from the reduction (or in his own case, from the free travel offered to senior citizens),

 

And all were Greater London ratepayers having to pay the increase in rates.

However, neither side had made an objection to their hearing the case.

Any Court of Appeal would have been in the same position.

 

Congreve v Home Office [1976] CA

 

[Judicial Review – grounds include ultra vires – if government minister acts improperly]
Following an announcement that the price of a TV licence was to be raised, people bought licences at the old price to beat the increase. The Home Secretary purported to exercise his powers under the Wireless Telegraphy Act 1949 to cancel any licence TV licences bought.

 

Held: The Home Secretary had acted for an improper purpose, and that his decision was consequently ultra vires and unlawful.

 

Dimes v Grand Junction Canal (1852) HL

 

[Judges must not appear to be biased or impartial]
Lord Cottenham (LC) held a substantial block of shares in a canal company that brought a case in equity against a landowner

His holding was then discovered and an application made to have the Chancellor's decision set aside.

 

Held: Although there was no suggestion that the Lord Chancellor had in fact been influenced by his interest in the company, no case should be decided by a judge with a financial interest in the outcome. The Chancellor's orders would therefore be set aside as such, but those of the Vice-Chancellor (to the same effect) were confirmed.

 

Goose v Wilson Sandford (1998)

[Judges – lack of public confidence ultimately subversive of the rule of law]
The highly unpopular High Court judge Mr Justice Harman - three times voted the profession's least favourite judge - resigned after he was criticised over a 20-month delay in delivering a judgment.

 

Three Court of Appeal judges said his conduct "weakens public confidence in the whole judicial process". They ordered a retrial. He had lost documents and forgotten evidence.

 

Alan Boyle QC told the appeal judges that he had written letters to Mr Justice Harman urging him without success to give his judgment. At one stage, Mr Boyle had considered taking out life insurance on Mr Justice Harman to cover lost legal costs if he died before giving his ruling.

 

Held: The judge's 20-month delay in giving judgment weakened public confidence in the whole judicial process, was ultimately subversive of the rule of law and must never be allowed to occur again, Harman J submitted his resignation to the Lord Chancellor within a matter of hours.

 

Gunning, R v [1980] CA

[Role of judge – not an advocate – cricket analogy]
D on trial for theft, and during his evidence-in-chief, the judge asked him 165 questions, compared with 172 asked by his own counsel.

 

Held: The judge had deprived D of the opportunity of developing his defence. The judge is not an advocate. Under the English system of criminal trials, he is much more like the umpire at a cricket match. He is certainly not the bowler, whose business is to get the batsman out.

 

D's conviction quashed

Hoekstra v Lord Advocate (2000) HCJ (Scotland)

[Judges must not appear to be biased or impartial]
An article written by Lord McCluskey, strongly criticising the incorporation of the European Convention on Human Rights into Scots law was published a few days after he had sat (with other judges) to consider an appeal, which raised Convention issues.

 

Held: The article might reasonably create in the mind of an informed observer an apprehension of bias, even if in fact there was none.

 

Home Secretary ex p Fire Brigades Union [1995] HL

 

[Judicial Review – Home Secretary cannot use prerogative powers to defeat Parliament - courts cannot overrule Parliament]
Home Secretary announced new rules for Criminal Injury Compensation scheme, despite rules set out in The Criminal Justice Act 1988 The Criminal Justice Act 1988 which had never been brought into force after six years.

 

Held: The Home Secretary had acted unlawfully: he could choose when but not whether to introduce the statutory scheme, and could not use prerogative powers to defeat the clearly expressed wishes of Parliament.

 

Inner West London Coroner ex p Dallaglio [1994] CA

 

[Judges – bias - lack of public confidence ultimately subversive of the rule of law]
The coroner enquiring into the Marchioness disaster gave a press interview in which he described a relative of one victim as "unhinged by grief" and others as "mentally unwell". These and other relatives sought judicial review of the coroner's decision to continue with the inquest,

 

Held: The coroner's comments had been injudicious, insensitive and gratuitously insulting, and gave rise to an appearance of bias.

 

Application granted

Jones v National Coal Board [1957] CA

 

[Role of judge – to listen – keep order – clear up ambiguities]
C’s husband a miner died in an underground accident Hallett J’s many interruptions made it impossible for counsel to put the case properly.

 

Held: Ordering a new trial, Denning LJ said the judge's part in a civil trial is

"to hearken to the evidence, only himself asking questions when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this he drops the mantle of a judge and assumes the robe of an advocate, and the change does not become him well."

Locabail v Bayfield Properties [2000] CA

 

[Judges must not appear to be biased or impartial]
Guidance laid down as to the type of interest that might disqualify a judge, magistrate or juror from hearing a particular case.

 

Automatic disqualification for a pecuniary interest

The question is not whether the judge has some link with a party involved in a case before him but whether the outcome of that case could, realistically; affect the judge's interest.

 

A judge should not not disqualify him/herself because of

religion,
ethnic or national origin,
gender,
age,
class,
means or
sexual orientation of the judge
social or
educational or
service or employment background or history, nor
on his political associations or membership of social or sporting or charitable bodies.

M v Home Office [1993] HL

 

[Judicial Review – Home Secretary cannot ignore rule of law]
M was to be deported. The Home Secretary’s counsel gave an undertaking that this would not happen until after the hearing of the appeal. However, M was deported. The court ordered that M should be taken off the plane when it stopped at
Paris. The Home Secretary did not consider himself bound by the order and M was not taken off the plane.

 

Held: The Home Secretary was held in contempt of court but no punishment imposed.

The "rule of law" requires even government ministers to accept and obey the orders of the courts.

 

M disappeared shortly after his arrival in Zaire and was never heard from again.

Marylebone Magistrates' Court ex p Perry (1992) DC

[Magistrates - lack of public confidence]
D guilty of disorderly conduct after an anti-apartheid demonstration. At his trial he gave evidence which included a long denunciation of the evils of apartheid; after 15 minutes the magistrate said he intended to "improve the shining hour" with some other work, and spent the next ten minutes signing warrants.

 

Held: There is a fundamental judicial duty for the court to give the case in hand its undivided attention

 

Conviction quashed

R v W (1993) CA

[Judges – lack of public confidence ultimately subversive of the rule of law]
D A 15-year-old boy was convicted of raping a classmate. The judge made a 3-year supervision order and then ordered D to pay the victim compensation of £500 "so that she can have a good holiday to get over the experience".

 

Held: By an Attorney General’s Reference, the sentence was substituted with two years' detention.)

Re Pinochet [1998] HL

 

 

[Judges must not appear to be biased or impartial]
Lord Hoffmann when deciding if a former head of state had immunity from extradition proceedings had for some years been a non-executive director of Amnesty International Charity.

 

Held: The fundamental principle is that a man must not be a judge in his own cause:

Lord Hoffman was so closely and actively associated with one of the parties that he was disqualified from hearing the case regardless of whether or not there was any actual appearance or risk of bias.

Where the judge was a director or senior officer of a charity that was party to a case, disqualification is automatic subject to the possibility that the parties (having been fully informed) might waive any objection.

 

This case was unique in that the HL reversed a previous decision of its own.

Renshaw, R v (1989) CA

[Role of judge – to listen – keep order – clear up ambiguities]
D received a number of threats before a trial and she was reluctant to give evidence. The case involved W assaulting his girlfriend.

At trial, the CPS indicated they wished to withdraw the case, but Judge Pickles insisted that it proceed. When D refused to give evidence, he directed the jury to acquit W. He then committed D for contempt of court.

 

Held: W had agreed to be bound over and the prosecutor tried to explain to the judge that he was prepared to drop the case on that basis. Judge Pickles continually interrupted. He took it on himself to conduct the contempt proceedings, and had given the impression throughout that he was determined to see D punished for her contempt.

 

Refusal to give evidence was a serious matter, but justice had not been seen to be done.

 

The Court of Appeal stressed the importance of the judge listening to the reasons given by the prosecution for proposing to offer no evidence.

 

The judge should keep in mind that the prosecution will have information which he does not. If he fails to heed what the prosecution say, he will deprive himself of a proper basis for approving or disapproving of their proposed course of action.

 

Committal quashed

Sanders v Chichester (1994) QBD (Election Court)

[Role of judges – advising Parliament]

S, the Liberal Democrat candidate in the European election, challenged the result by which C was returned with a majority of only 700 over S. H, a candidate described himself as a "Literal Democrat", polled 10,203 votes. S submitted that the returning officer should have rejected H's nomination paper because the description was not sufficient to identify him, according to law .

Held: Petition dismissed. The Rules required only that a candidate's nomination paper should identify him by his name and address and that any description should not exceed six words.

 

Returning officers had no powers to reject a nomination paper on the grounds that the description was likely to confuse voters. Parliament's intention, as specified in debates, was that despite the risk of voters being confused or misled, returning officers should not become involved in sensitive political inquiries.

 

Parliament might do well to reconsider and introduce rules on candidates' descriptions, Electoral Commissions and registration of political parties.
 

Comment: The judges said this was not unlawful, but suggested that Parliament might consider whether there was a need for a formal register of political parties and a ban on potentially misleading descriptions.

 

Schedule 2 to the Registration of Political Parties Act 1998 amended the election rules accordingly.

Secretary of State ex p Avon CC (1990)

[Judicial Review – is a review of procedure - not an appeal to substitute decision]
Secretary of State approved plans of
Avon's County Council for reorganisation of a secondary school. The governors of the school voted to "opt out" to preserve their existing status.

 

Held: At judicial review the Minister's decision quashed on the grounds that he had not properly considered the consequences for children at other schools.

 

[Two weeks later, having reconsidered, the Minister made the same decision again, and the Court of Appeal said the courts could not substitute their own judgement for his.]

Secretary of State ex p Smith [1996] CA

 

[Judges cannot overrule Parliament - Judicial Review – grounds include irrationality – threshold of irrationality was high]
Four service personnel dismissed for homosexuality as a matter of general policy. None of the applicants had engaged in homosexual activity on service premises.

 

Held: The policy had been endorsed by Parliament and by those to whom the Minister looked for professional advice, and could not therefore be described as irrational … it was not the role of the courts to regulate conditions of service in the armed forces.

 

Quashing order refused

Sirros v Moore [1974] CA

[Judges immunity extends to acts done in good faith]
D appealed to the Crown Court against a magistrate's recommendation for his deportation. The judge dismissed the appeal and when saw D about to walk out of his court he called upon the police to stop him.

 

Held: D's claim for damages for assault and false imprisonment failed. Although the judge's order was unlawful (D had not been remanded in custody) the judge’s immunity extended even to acts beyond his jurisdiction as long as they were done in good faith.

 

Also here

Starrs v Procurator Fiscal (1999) HCJ (Scotland)

 

[Judges must not appear to be biased or impartial – judicial independence – assistant recorders]
D claimed that his trial before a temporary sheriff violated his right under Art.6 (1) European Convention to a trial before an independent and impartial tribunal.

 

Temporary sheriffs are appointed by the Lord Advocate (a member of the Executive) as a first step on the road to a permanent judicial appointment.

 

Held: Judicial independence can be threatened not only by direct interference, but also by a judge being influenced (consciously or unconsciously) by his hopes and fears about his future career.

 

Weston-super-Mare JJ ex p Taylor [1981] DC

[Magistrates - lack of public confidence]
During a trial, the chairman of the magistrates appeared to be asleep. D's solicitor suggested that she might be ill and should withdraw from the case, but she declined to do so.

 

Held: The chairman had not in fact been asleep. This had been a genuine application by a respected and responsible solicitor, and should have been taken more seriously.

 

Conviction set aside and new trial ordered.

Whybrow & Saunders [1994] CA

[Role of judge – to listen – keep order – clear up ambiguities]
DD conspired to murder.

 

Held: Ian Kennedy J had repeatedly intervened while they were giving evidence, ridiculing their (admittedly improbable) explanations to such an extent that they were denied a fair trial.

 

Appeal allowed new trial ordered

Worcestershire JJ ex p Daniels (1996) DC

[Magistrates - lack of public confidence]
D failed to provide a specimen of breath. During her trial, while she gave evidence, one of the magistrates was reading other material and not paying attention to what she said.

 

Held: It is important that justices give and seem to give full attention to the proceedings. Justices need not look at a witness constantly, but should not appear to be engaged for any considerable time in some other activity, this will maintain public confidence.

 

Conviction quashed.

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