In re McC (A Minor); McC v Mullan: HL 1984

The House considered the immunity from suit of judges. The Magistrate here had passed a custodial sentence on a minor without complying with a statutory provision which required him to inform the offender of the right to Legal Aid.
Held: The House reaffirmed the common law rule that judges of the higher courts were immune from suit even if it could be shown that they had been actuated by malice.
Lord Bridge said: ‘The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.’ and ‘It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass.’
The word ‘jurisdiction’ is not always used in its strict sense
Lord Templeman discussed the judicial immunity of Magistrates: ‘If in the course of a trial which a magistrate is empowered to undertake, the magistrate misbehaves or does not accord the accused a fair trial, or is guilty or some other breach of the principles of natural justice or reaches a result which is vitiated by any error of fact or law, the decision may be quashed by the Magistrate Acts within jurisdiction.’
Lord Lowry said that the Courts should be slow to change or develop the law in disputed areas of social policy, particularly when Parliament has considered the position and made some changes, or has rejected the opportunity to make changes.


Lord Bridge of Harwich, Lord Lowry, Lor Templeman


[1985] AC 528, [1984] 3 WLR 1227, [1984] 3 All ER 908


England and Wales


CitedAnderson v Gorrie CA 1895
An action had been brought against a colonial judge, alleging malice.
Held: Lord Esher MR said: ‘the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it . .

Cited by:

CitedDarker v Chief Constable of The West Midlands Police HL 1-Aug-2000
The plaintiffs had been indicted on counts alleging conspiracy to import drugs and conspiracy to forge traveller’s cheques. During the criminal trial it emerged that there had been such inadequate disclosure by the police that the proceedings were . .
CitedWebster v Ministry of Justice QBD 23-Oct-2014
The claimant had been convicted at trial, and release after a successful appeal but after considerable time in jail. He now comlained of the judge’s conduct at trial saying that misdirections amounted to bad faith.
Held: The claim failed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Magistrates

Updated: 29 April 2022; Ref: scu.184733