O'Connor v Aldershot Magistrates' Court

LORD JUSTICE DAVIS: The claimant Mr O'Connor was facing a trial at Aldershot Magistrates' Court. He was facing a public order offence as charged.

There had been previous hearings before the magistrates which had resulted in adjournments. There had been no trouble of any kind. On this particular occasion the justices upheld, as it were, a previous decision of the security manager of the court centre to exclude from the court building people who were thought to be supporters of Mr O'Connor and who Mr O'Connor wished to be in court to support him. Mr O'Connor, his McKenzie Friend and witnesses were of course permitted to be in court.

Mr O'Connor is very aggrieved at this. He considers that this violates the principles of open justice, violates the provisions of the Magistrates' Court Act requiring that a trial of this kind be heard in open court and is contrary to the provisions of Article 6 of the Convention.

What this court is concerned with at this stage is whether or not this case is arguable. All criminal courts and all Magistrates' Courts (or at least almost all of them) have experience on occasion of having to exclude people from court when they are disruptive. But it is rather a different thing when people are not permitted to be in court even before any disruption has occurred: although there is jurisdiction in courts in such cases, as the common law authorities show and as indeed is stated in Article 6.

Mr O'Connor's central point - not his only point - is that the justices in this particular case, in effect, had subordinated their own judicial responsibilities to the decision of the security manager at the court and simply acted on his say-so without judicially appraising materials which the court manager had and without, in consequence, giving Mr O'Connor a chance to argue against a decision to exclude: in circumstances where he did not know, as he says, the evidence being relied upon.

It seems to me that there may be a point as to whether or not the two questions posed by the court legal adviser to the justices, as set out in her witness statement, fully reflected the matters that need to be addressed. At all events, I think, having considered the papers, that there are arguable issues here and it is appropriate to grant permission. Indeed, this may be a case which has potential implications for other cases and it would be helpful if the Divisional Court were to pronounce on procedures that might need to be followed in circumstances such as arose in the present case which it is entirely possible may arise in the future albeit each case will have its own facts.

One point that the single judge had made in refusing permission to appeal is that, in the event, the magistrates having excluded these people from the court, saw fit then to adjourn the trial on receipt of a representation that an application for judicial review was going to be made. It might be said therefore that Mr O'Connor has not yet been denied a fair trial because he has not yet had a trial. I can sort of understand that point; but I think Mr O'Connor was entitled to say this problem may well not go away and this situation may arise yet again at the adjourned hearing. That certainly cannot be discounted as a realistic possibility.

Overall, I have come of the view that permission to apply should be granted. But I think there will hereafter need to be discussion with Mr O'Connor on consequential matters.

I would, for myself, therefore grant permission.

MR JUSTICE OUSELEY: I agree.

There are potentially important and difficult issues to be resolved about the interaction between magistrates, security and the public, who decides what in relation to a building operated by a general court service for the purposes of providing courts in which access by the public to the courts for the purpose of hearing cases is normally a matter for judicial control.

There are also issues of practicalities about how questions of whether somebody who has not yet shown themselves to be disruptive but is feared to be disruptive should be dealt with, what steps should be taken by whom and how. Those are reasons too why I consider permission should be granted.

There are a number of directions I think that then need to be given.

LORD JUSTICE DAVIS: Mr O'Connor, you have permission to apply for judicial review.

THE CLAIMANT: Thank you.

LORD JUSTICE DAVIS: The first thing I must say to you - I daresay it has been said to you on previous occasions - is that, you having permission, you may think it is in your interest to get legal representation. You have some advice available to you. It is your decision but I must advise you that it may be in your interests to have legal representation at the next hearing. That is a matter for your decision.

THE CLAIMANT: It is always a question of the costs.

LORD JUSTICE DAVIS: I understand that.

THE CLAIMANT: I also have some expert - - these guys have been fab.

LORD JUSTICE DAVIS: You do not need to respond to that. You may consider it in your interest but that is your decision.

THE CLAIMANT: Yes, thank you.

LORD JUSTICE DAVIS: The second point my Lord and I have been considering is we were wondering whether it might not be better - to avoid you perhaps not being able to deploy fully your arguments as you may wish - if one of your supporters (not a witness) who wished to be present in court but was not permitted to be present in court was joined as a co-claimant.

THE CLAIMANT: Mr Gerard here will be joined.

LORD JUSTICE DAVIS: I am not compelling you to do that but it may be just to avoid any procedural difficulty. It does not involve any extra representation I would have thought.

THE CLAIMANT: We do intend to do that.

LORD JUSTICE DAVIS: Only one, and it must not be someone who is going to be a witness. Can you name that person now?

THE CLAIMANT: I think I name Don Gerard. He is sitting beside me. He will be joined.

LORD JUSTICE DAVIS: He is willing?

THE CLAIMANT: Yes.

MR JUSTICE OUSELEY: He needs to be aware that whatever happens down the line there is a potential cost liability. He would need to know that. He is not excluded from a costs liability. Obviously, he would not have a lawyer to pay himself but the court is likely to say that it would benefit from representation by both "wings", if I can put that way, of HMCTS. It does not follow that they might win; it does not follow that if they win there would be costs. I think Mr Gerard needs just to have that point, that risk, in mind before thinking the court has absolved him.

MEMBER OF PUBLIC: (Mr Gerard) Thank you, my Lords. If I may address you on that point. I am a retired former solicitor. I am also, as Mr O'Connor said, a local councillor in the area. It is also relevant, by the way, that I was a candidate in the Police and Crime Commissioner elections in the Isle of Wight which covers the entire area we are talking about in the 2012 election. It is also my intention to stand next year. The particular issue I stood on in the election - I had a very large number of votes, well over 24,000 first votes - was that I believed there should be open justice in particular.

So I understand of course the risks - I am a retired former solicitor - but I do believe that a very important principle is at stake here which goes to the issues that I personally have fought for for many years, issues of justice and open justice. So I understand fully well, my Lord, what you are saying. I am fully supportive of Mr O'Connor on that principle. If it is of assistance, I am a retired former solicitor. I have appeared as an advocate in the High Court in the past in the area I practised in. So I am perfectly willing to take that on with the risks involved.

LORD JUSTICE DAVIS: That is very kind of you, Mr Gerard. This court cannot advise anybody. We are judges. But I am not trying to advise, not trying to say in any way at all, but possibly a good claim may be lost purely because he has failed to join someone like yourself. I am not trying to say that; I am just trying to avoid any technical difficulty.

THE CLAIMANT: Thank you.

LORD JUSTICE DAVIS: If you are willing - - - - -

MEMBER OF PUBLIC: (Mr Gerard) The question of costs is always an issue. I am retired some years ago. I had osteoporosis, slightly disabled. I had to retire for that reason. I have during the last ten years been regularly helping people because of this problem that is inherent in our court system, that people such as Mr O'Connor cannot afford representation. So one way to try and assist that process is to intervene. I fully understand.

LORD JUSTICE DAVIS: Thank you, Mr Gerard. As you are a solicitor, I do not think I need say any more on the point.

The formalities. He will be added as a second claimant. It will be one set of arguments for the next hearing but he will be there.

As my Lord has indicated, HMCTS has now been joined as an interested party. All I can say is this court's present view is that it indeed does have an interest in this case and we would be anticipating it would - and should - need to be represented at the hearing because it is not necessarily the case that its interests are coterminous with the magistrates. We say that for the record because it may be hereafter they will think it appropriate. My personal view is it would assist the court if HMCTS were present and represented. And also if they can ensure, along with the justices, that all legal relevant authorities are cited. As you know, the lawyers have an independent responsibility to the court to make sure all relevant legal authorities are drawn to the attention of the court.

We will be directing that a transcript, not only of the judgments we have just given but this current debate be obtained a public expense and provided not only to yourself - - - - -

THE CLAIMANT: Thank you.

LORD JUSTICE DAVIS: - - - - - but also to HMCTS and to the Aldershot Magistrates so that they can understand what shape we see these proceedings taking.

THE CLAIMANT: I am very grateful. Can I ask as a matter of interest, have HMCTS been involved in anything like this before previously? Is there any historical precedent? Or is this new ground?

LORD JUSTICE DAVIS: I am not in any position to say because I do not know but HMCTS can no doubt say if it becomes relevant at the next hearing.

THE CLAIMANT: Thank you.

MR JUSTICE OUSELEY: I think it is important that we are saying that both - - HMCTS with its responsibilities for the buildings as a whole, the security of the buildings as a whole, because obviously one of their concerns is protestors getting into a court building and then - whether they go via a court or not - getting into parts of the building that are not publicly accessible. That is one aspect. But also how justices deal with these problems is a matter which requires a judicial input for the purposes of the argument. You understand the problems they see. So it is important that both, in my view, should be represented to offer us assistance so they do not get judgments which are impracticable to operate or unhelpful to the courts in their operation.

I would personally add that if either of them do not intend to take up the encouragement to be represented they ought to let this court know as soon as possible so it can consider whether it should seek the appointment of a Friend - an amicus - to the court to put forward what should be put forward.

THE CLAIMANT: Thank you.

LORD JUSTICE DAVIS: Can we deal with the remaining matters? We do not want any procedural difficulties. First of all, you say you still have not had the witness statements in correct form.

THE CLAIMANT: No.

LORD JUSTICE DAVIS: I personally have seen - - the last page is now signed. To avoid doubt, we will give a direction that the statements thus far served - Miss Watts and the Group 4, Harvey - they should be served on you within seven days in proper witness statement form, exactly as they are in the proper witness statement form. Are you still concerned that you do not have any proper statement of the reasons of the justices?

THE CLAIMANT: Yes. We are waiting, trying to obtain the approved notes of reasons from the magistrates.

LORD JUSTICE DAVIS: We will direct that the approved note of reasons of the justices - of their rulings - as given at your trial should be lodged within fourteen days.

THE CLAIMANT: There was a second point here, disclosure of guidance in Harvey's statement, paragraphs 9, 10, 11.

LORD JUSTICE DAVIS: What do you mean?

MR JUSTICE OUSELEY: Paragraph 9, he says, "I have issued guidance."

THE CLAIMANT: Yes. Should that guidance be disclosed? It is referred to in 10 and 11.

LORD JUSTICE DAVIS: At present I cannot see any reason why it should not be disclosed to you, he having referred to it. What we suggest is that you write to the other side asking for a copy of the guidance as referred to in paragraph 9. If they have an objection to that I will have to give reasons why and that can be sorted out.

THE CLAIMANT: I would prefer you direct it.

LORD JUSTICE DAVIS: The reason why it would not be right to direct it is that if they have some legitimate objection - I do not know if they could have but if they do - they are entitled to raise it.

THE CLAIMANT: I raise it as an issue because it is an issue that will no doubt raise itself again because they are very, very bad at sending anything.

LORD JUSTICE DAVIS: The transcript will show that my present view is - not my final view - there can be no proper reason why you should not see this guidance. I cannot say any more than that.

THE CLAIMANT: Can I check Mr Harvey has put in his witness statements, it has been on oath and filed and served?

LORD JUSTICE DAVIS: I have directed that be done. It is a witness statement and it will be served on you again in proper witness statement form within seven days. At the moment it looks to be in proper form. The same goes for Miss Watts.

Just possibly a plan of the court might usefully be available at the next hearing.

THE CLAIMANT: Yes. I can ask them for one.

LORD JUSTICE DAVIS: That can be on the transcript because HMCTS should be able to produce a plan in court, just in case the court on the next occasion wants to know the layout.

THE CLAIMANT: Would it help the court if I provided a summary of some historical protest that I have done, explain the back history, to explain there is no.

LORD JUSTICE DAVIS: I very much doubt it. You must present your case in your own way. What we are concerned about is what happened on this occasion.

At the moment your trial is still floating in the air, hanging over your head but equally so far as the complainant is concerned hanging over the complainant's head. I think we should direct that so far as possible this matter should come on for substantive hearing this term.

THE CLAIMANT: Yes.

LORD JUSTICE DAVIS: There may be some legal authorities that need to be gone into. I think it would be safest to allow one day for the hearing. Is there anything else?

THE CLAIMANT: No. That is it.

LORD JUSTICE DAVIS: Costs will be in the case. That means the costs will be decided at the conclusion of the hearing. Are there any other points which occur to you at this stage, Mr O'Connor?

THE APPLICANT: I am very grateful for your time for bearing with me.