swarb.co.uk - law index
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Magistrates - From: 1991 To: 1991
This page lists 8 cases, and was prepared on 02 April 2018.
ÂDirector of Public Prosecutors v Gane [1991] Crim LR 711; [1991] JP 846
1991
Admn
Taylor LJ, Rougier J
Magistrates, Criminal Practice
The defendant was charged with driving with excess alcohol and being in charge of a vehicle with excess alcohol. It was clear that on the facts the former charge included the latter. The magistrates found the facts proved but convicted only on the driving charge and acquitted on the lesser charge. The prosecutor appealed by way of case stated. The justices stated in the case that they had concluded that it would be oppressive to convict on the lesser charge because they were only dealing with a single set of facts. Held: The court said that the Magistrates' Court was wrong to acquit on the lesser charge. Taylor LJ said: "If, however, the prosecution had at that stage wished to keep its position open, pending any possible appeal with regard to the driving offence, certain alternatives were available.
Section 10 of the Magistrates' Courts Act 1980 provides for adjournment of trial as follows: 'A magistrates' court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice.'
The justices could, therefore, have adjourned the alternative charge No.2 sine die, which would have left it open for them to pursue it to conviction had the matter been referred back after a successful appeal on charge 4. Alternatively, they could have convicted of it and imposed a concurrent disqualification on that charge but no further penalty if they felt it would have been oppressive to have imposed any further fine. The result of that would have been that if a successful appeal had been mounted in regard to the driving charge there would still have remained a conviction on the alternative offence of charge 2 with an appropriate disqualification, although of course no fine."
Magistrates' Courts Act 1980 10
1 Citers
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Regina v Bolton Justices ex parte Scally [1991] QB 537
1991
CA
Watkins LJ
Magistrates
A conviction or other judicial finding by an inferior tribunal is amenable to quashing by certiorari even if it was obtained without unfairness by the tribunal and without malpractice by the prosecutor or other complainant. Watkins LJ described what had gone wrong: "I would regard the mischief here as arising from a regrettable failure, in the police stores or other place under the control of the police, to take the simple precaution of ascertaining whether, having regard to the use for which the swabs were intended, [the] swabs were . . suitable . . It was as simple and unfortunate as that . . it is not suggested that dishonesty entered this affair at any stage." Quashing the convicrion, he said: "What happened here was that, there being no dishonesty, the prosecutor (a combination of police and CPS) corrupted the process leading to conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty; indeed it wrongly denied them a complete defence to the charge.
1 Citers
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Regina v The Dover Justices ex parte Dover District Council [1991] 156 JP 433; Times, 21 October 1991
1991
QBD
Neill LJ
Magistrates
Magistrates could not restrict and prevent reporting of elements of a court case where publicity might result in financial damage or damage to reputation or goodwill of a defendant. Such circumstances were not special ones to allow this.
1 Citers
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 Regina v Telford Justices, ex parte Badhan; CACD 1991 - [1991] 2 QB 78; [1991] 2 All ER 854; (1991) 93 Cr App R 171; [1991] 2 WLR 866
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Regina v Harrow Justices ex parte Director of Public Prosecutions [1991] 1 WLR 395
1991
Magistrates, Criminal Practice
In order to use the power to issue a warrant of commitment, committing the defaulter to custody, the court must conduct a fair and public hearing to decide what is the appropriate order to make in all the circumstances. The power to issue the warrant is discretionary. Such a warrant is a mode of enforcement of last resort.
Magistrates Court Act 1980 76
1 Citers
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 Regina v Governor of Pentonville Prison, Ex parte Sinclair; Sinclair v Director of Public Prosecutions; HL 1991 - [1991] 2 AC 64; [1991] 2 All ER 366; [1991] CLY 1750
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Regina v Bolton Magistrates' Court, ex parte Merna; Regina v Richmond Justices, ex parte Haines [1991] Crim LR 848; [1991] 155 JP 612
1991
Magistrates, Criminal Practice
The divisional court should intervene where a defendant has been deprived of a fair opportunity to present his case because of his own unavoidable absence.
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Regina v Leicester City Justices, ex parte Barrow [1991] 2 QB 260
1 Aug 1991
CA
Lord Donaldson of Lymington MR
Magistrates, Litigation Practice
The appellant challenged a community charge liability order in which justices had refused an application made on his behalf for a friend to be allowed to sit with him to give advice and assistance. He sought judicial review. The Divisional Court had refused review. Held: The appeal succeeded. "A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the court to intervene . . if a party arms himself with assistance in order the better himself to present his case, it is not a question of seeking the leave of the court. It is a question of the court objecting and restricting him in the use of this assistance, if it is clearly unreasonable in nature or degree or if it becomes apparent that the 'assistance' is not being provided bona fide, but for an improper purpose or is being provided in a way which is inimical to the proper and efficient administration of justice by, for example, causing the party to waste time, advising the introduction of irrelevant issues or the asking of irrelevant or repetitious questions." The court expressed its hope that as regards the term 'McKenzie Friend': "the fervent hope . . that we shall hear no more of "McKenzie friends" as if they were a form of unqualified legal assistant known to the law." Such terminology obscures the real issue which is fairness or unfairness. Let the term "McKenzie friend" join the "Piltdown man" in decent obscurity."
On the facts "I cannot be sure that the applicants were not prejudiced and accordingly I have no doubt that the justices' order should be quashed."
Lord Donaldson of Lymington MR said: "It is important to appreciate that in this case we are not concerned with rights of audience or rights to conduct litigation. Rights to conduct litigation are not relevant to proceedings on a summons claiming a community charge liability order, whilst the applicants’ right of audience as parties to the proceedings has never been called into question and neither they nor Mr John sought any right of audience for him. The applicants’ case came on for hearing at a time when, for good reason, the court was closed to the general public, other than representatives of the press, and the applicants, represented by Ms Jones, rightly sought (and needed) the leave of the justices to enable Mr John to enter the court. The reason put forward by Ms Jones was that the applicants wished Mr John to assist them in presenting their cases to the court by taking notes, quietly making suggestions to the applicants and giving the applicants advice.
The justices’ refusal to allow Mr John to enter the court may well have aggrieved Mr John, but he is not a party to these proceedings. In so far as he has a legitimate grievance, it could only be on the basis that he was a member of the public who wanted to be a spectator in court, for, not having a right of audience on behalf of the applicants, he personally had no other right. The applicants are in a different position. They have a right to be heard in their own defence. Fairness, which is fundamental to all court proceedings, dictates that they shall be given all reasonable facilities for exercising this right and, in case of doubt, they should be given the benefit of that doubt for courts must not only act fairly, but be seen to act fairly. The real issue in this appeal is whether the Leicester City justices acted fairly and were seen to act fairly in the circumstances of this case. That they sought to do so in a difficult situation is not in doubt, but they may not have succeeded. References to “McKenzie Friends” and still more to a “right to a McKenzie Friend” mislead, because they suggest that someone who seeks to assist a litigant in person has a special status akin to, if less than, that of one who has a right to audience or a right to conduct litigation. The “McKenzie Friend” does not exist at all as such and has neither status nor rights. The only right is that of the litigant and his right is to reasonable assistance which can take many forms."
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