R (Ewing) v Isleworth Crown Court and Others [2019] EWHC 288 (Admin)
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R (Ewing) v Isleworth Crown Court and Others [2019] EWHC 288 (Admin) concerned a challenge by way of judicial review to the claimant’s exclusion from a courtroom during the delivery of a Crown Court judgment, which the Divisional Court (Bean LJ and Simler J) held to have been unlawful.
Mr Terence Patrick Ewing had been observing an appeal by Dr Sheida Oraki and her son Mr Ramtin Oraki against convictions for obstructing and assaulting police officers. On 2 August 2017, in the fourth day of the appeal at Isleworth Crown Court before Mr Recorder Hill-Smith and two lay justices, Mr Ewing left court at about 3 p.m. When he returned at 5.15 p.m. the Recorder was delivering the court’s judgment on the appeals. Mr Ewing was not permitted to re-enter the courtroom until the judgment had been concluded. He was neither a party nor a witness but a supporter of the appellants. There was no suggestion that he had been excluded by specific direction of the Recorder or that he had been disruptive or seemed likely to be so.
Mr Ewing was a vexatious litigant subject to a section 42 order under the Senior Courts Act 1981 and was obliged to obtain permission to bring the claim, which he did. Supperstone J granted leave on 11 January 2018, the claim was issued, and Walker J granted permission for judicial review on 23 April 2018 with a protective costs order. Walker J had observed that an usher could tell those entering a courtroom during proceedings that they must do so quietly, and that if they entered quietly it was difficult to see how they would disrupt proceedings. The Director of Public Prosecutions and HM Courts & Tribunals Service were added as interested parties; the DPP played no active part and HMCTS was represented together with the defendant Crown Court by Mr Louis Mably QC and Mr Henry Flanagan.
HMCTS served witness statements from Ms Harpreet Dale, Director of Operations for Harrow and Isleworth Crown Courts, and Mr Guy Tomkins, Director of Operations at national level. Mr Tomkins described the practice in a significant number of Crown Courts of placing an usher at the door or posting a sign to prevent entry or exit during important or formal parts of proceedings. He said the approach varied between courts. Many did not adopt the practice routinely; some used a more flexible approach of an usher being stationed by the door on a judge’s direction in a particular case. The practice was applied particularly during arraignment, taking of oaths, summing-up, verdict, judgment and sentencing. He said the reasons included avoiding distraction to the jury or judge during important points requiring particular concentration, avoiding distractions during sensitive moments when it was paramount that the defendant and those in the public gallery could focus on and hear what the judge was saying, preventing distractions detrimental to the dignity and solemnity of proceedings, and serving the interests of the proper administration of justice.
Ms Dale stated that as far as she was aware it was the practice in all London courts for the usher to stand at the door when the defendant was being arraigned, a verdict was being taken and when a sentence or judgment was being passed. All court staff, members of the Bar, journalists and members of the public had always respected this and this was the first time it had been an issue in her experience. She said the judge was in charge of his or her courtroom and decisions to exclude or prevent entry were taken based on the court etiquette set out above. She emphasised that courtroom doors were heavy and wide and situated in direct view of the judge, witnesses and jury and close to the dock, so that whenever a person opened the door to enter no one in court could avoid hearing or seeing it and consequently looking at the door, causing a distraction. The judges at both her courts expected the usher to stand at the door and had brought it to her attention if this etiquette was not observed and parties consequently got distracted.
Mr Mably submitted that this was not a case of interference with the open justice principle. Mr Ewing had a right to attend the proceedings and had exercised it for most of the hearing. If he had been present at the start of the Recorder’s judgment he would plainly have been allowed to remain to the end. The only restriction was that he could not enter or re-enter while judgment was being given. Any interference with open justice was de minimis and in the interests of justice. No one had an untrammelled right of access to the courts. The Crown Court had an inherent power to regulate its own proceedings so that at critical moments the court was free from distraction. He adopted the examples given by Mr Tomkins. He submitted that a judgment on an appeal against conviction, being a rehearing, was effectively to be equated to a jury delivering its verdict. It was essential that a defendant should be able to listen to this critical decision without any distraction. The delivery of such a judgment was a moment of particular solemnity and dignity. When it was pointed out that in the High Court and Court of Appeal Criminal Division members of the public were free to come and go during delivery of judgment in criminal appeals, Mr Mably responded that an appeal in the Court of Appeal, not being by way of rehearing, was not to be equated to a jury delivering its verdict and so it was rational that a different practice should apply.
Mr Ewing submitted that he had had difficulty discovering whether there was a policy at all and, if so, how it came into being and who formulated it. He argued that any restriction on the right of the public to come and go freely during a criminal trial could only be lawful if set out in primary legislation, the Criminal Procedure Rules or a Practice Direction given by the Lord Chief Justice. He also submitted that it could not be lawful for different Crown Courts to adopt different policies.
Lord Justice Bean, with whom Simler J agreed, began by noting that there was no controversy about the existence and importance of the open justice principle. He cited Bayley J in Daubney v Cooper (1829) 10 B&C 237, as quoted by Leggatt J in R (O’Connor) v Aldershot Magistrates’ Court [2017] 1 WLR 2833, that it was one of the essential qualities of a court of justice that its proceedings should be public and that all parties desirous of hearing what was going on, if there was room and provided they did not interrupt the proceedings and there was no specific reason for their removal, had a right to be present. He noted that Leggatt J had observed that the right to attend a public court hearing was not unqualified, and that the court had an inherent power to restrict public access where necessary in the interests of justice, for example to prevent disorder.
Lord Justice Bean distinguished the present case from various categories of case previously considered: it was not one about the court sitting in private, nor one where a courtroom was so hard to find or so small that there was effectively no public access. Nor was it about the powers of court security officers under section 53 of the Courts Act 2003, which Mr Mably rightly accepted was not relevant. It was important to note that this was not a case about a decision of an individual judge dealing with a situation on the spot, for example where members of the public had been interrupting proceedings or distracting participants by frequent leaving and re-entering. There was no evidence that the Recorder had told the court staff to exclude Mr Ewing or anyone else. The attack was on the policy or practice pursuant to which he was excluded.
Lord Justice Bean agreed with Mr Mably that there were some moments in a criminal trial where, as a matter of policy, it was reasonable and lawful for members of the public to be stopped from entering the courtroom or moving about. Arraignment, the empanelling and swearing in of a jury, a witness taking the oath or making affirmation, the return of verdicts by the jury and the passing of sentence by the judge were all, in his view, in this category. These were sensitive moments, generally of brief duration, when it was necessary for the court to be still so that the process could take place without distraction and in a manner which preserved the dignity and solemnity of the proceedings. But he doubted whether any general or blanket policy which went further than that could be justified. He could not accept Mr Mably’s submission that a Crown Court judge giving a reasoned ruling on an appeal against conviction was to be treated in the same way as the foreman of a jury returning a verdict. Even more unacceptable was the suggestion in Mr Tomkins’s witness statement that it would be lawful for a Crown Court to have a policy that nobody should be allowed to enter or leave the court at any stage during a judge’s summing-up.
Lord Justice Bean considered there was force in Mr Ewing’s criticism that the policy was not accessible, not published and of uncertain authorship. However, even assuming it had been published and authorised, he would regard it as unsustainable to have a general policy or practice under which no one could enter or leave the court during a summing-up or during the delivery of a ruling on a point of law or a judgment on an appeal other than the passing of sentence. He noted that he did not think it necessary or perhaps appropriate to say whether there should be a published policy, but if there was to be one it seemed to him that it should take the form of nationally applicable guidance given by the Senior Presiding Judge of England and Wales. It should only be justifiable to have local policies where the exigencies of a particular courtroom or building made special arrangements necessary. Even then, if a courtroom was so physically cramped that it was impossible for members of the public to enter or leave without causing serious disruption, such a room was not fit for use in jury trials.
Accordingly, Lord Justice Bean allowed the application and declared that the exclusion of Mr Ewing from court 10 at Isleworth Crown Court on 2 August 2017 was unlawful. He rejected the claim for damages, holding that the claimant’s Convention rights under Article 10 added nothing to the common law position, and that if there had been any breach the judgment itself was just satisfaction. The court ordered HMCTS to pay the claimant’s costs summarily assessed at £500.
In short, the Divisional Court held that a blanket policy or practice of excluding members of the public from entering a Crown Court courtroom during delivery of a reasoned judgment on an appeal against conviction was unlawful, though a limited practice of preventing entry during brief moments such as arraignment, oath-taking, return of verdicts and sentencing could be justified.
R (on the application of Ewing) v Cardiff Crown Court [2016] 4 WLR 21
R v Denbigh Justices ex parte Williams [1974] 1 QB 759
Oraki v DPP [2018] EWHC 115 (Admin); [2018] 2 WLR 1725