R (on the application of O’Connor and Another) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin)

R (on the application of O’Connor and Another) v Aldershot Magistrates’ Court [2016] EWHC 2792 (Admin) concerned a claim for judicial review challenging the exclusion of members of the public from a criminal trial in the magistrates’ court. The Divisional Court (Lord Justice Fulford and Mr Justice Leggatt) declared the exclusion unlawful and found that no valid proceedings had taken place in consequence.

The first claimant, Mr Matthew O’Connor, founder of Fathers4Justice, was summoned to appear at Basingstoke Magistrates’ Court charged with an offence under section 5 of the Public Order Act 1986. He pleaded not guilty on 23 September 2014 and the trial was adjourned until 12 November 2014 at Aldershot Magistrates’ Court. On that date the district judge recused himself after disclosing that he knew someone connected with the case and Mr O’Connor also requested an adjournment to prepare an argument that the prosecution evidence was tainted. The case was re-listed for trial at Aldershot Magistrates’ Court on 20 February 2015 before three lay magistrates. Mr O’Connor arranged through social media to meet members of the public interested in attending his trial and planned a protest outside the court building. Between 9am and 9.30am some eight to ten people, including Dr Pelling (Mr O’Connor’s McKenzie friend) and the second claimant Mr Donald Jerrard (a retired solicitor), assembled outside the court. Others included Mr Anthony Hooke, a Hampshire County Councillor, and Mr Stanley Evans, a retired engineer, both of whom Mr O’Connor intended to call as witnesses regarding an alleged earlier incident. Some were supporters of Fathers4Justice, while others simply believed Mr O’Connor to be a victim of unfair treatment.

At around 9.30am, when Mr O’Connor and his supporters attempted to enter the court building, they were refused entry unless they were listed as witnesses for the defence. This decision had been taken the previous day by Ms Donna Beeson, a Delivery Manager for Her Majesty’s Courts & Tribunals Service, and Mr Richard Harvey, the HMCTS Security and Fire Safety Officer for the South West Region. Mr Harvey had made the decision after learning of the planned protest and advised barring anyone associated with campaign groups unless they were defendants or witnesses, advice he stated had been well received in the South West Region. Mr Harvey came to the front entrance when challenged by Mr O’Connor and confirmed that he had taken the decision without consulting the magistrates. Dr Pelling was eventually allowed in as Mr O’Connor’s McKenzie friend, but Mr Hooke was refused admission even after explaining he was a defence witness whose name did not appear on the case management form.

At about 10am Mr O’Connor and Dr Pelling entered the building and the case was called on. Mr O’Connor addressed the magistrates requesting that the excluded people be allowed in and stated that he had a fundamental right to a public hearing and would not participate if members of the public were excluded. The legal adviser, Ms Karen Watts, advised that whether to allow entry to the building was an administrative matter for court managers responsible for health, safety and security and not a matter for the bench, but that the second issue was whether the trial could still be held in open court. She noted that a local news reporter and a solicitor who was there for another case were present. The chair of the bench decided not to allow the excluded individuals to enter based on this advice and the fact that a properly authorised court manager had taken the view that there was a risk on grounds of safety or security. After an adjournment Mr O’Connor requested that the case be adjourned while he applied for judicial review. The legal adviser advised that the presence of the press meant the proceedings were still being held in open court and that any challenge to fairness should be made after trial. The magistrates nevertheless decided to adjourn on the grounds of open justice.

Mr O’Connor commenced judicial review proceedings on 13 March 2015. The Divisional Court gave permission, observing that the case raised important issues with potential implications for other cases. Mr Jerrard was joined as second claimant. At the hearing Dr Pelling addressed the court on behalf of both claimants. Mr Sanders appeared for both the defendant magistrates’ court and HMCTS, the latter having been joined as an interested party and adopting a neutral position.

The court first considered whether the restriction of entry was lawful. Dr Pelling submitted that there was no rational basis for fearing disruption, that the magistrates’ decision was irrational on public law principles, involved an improper delegation to court managers of what must be a judicial decision, violated the common law principle of open justice, the statutory requirement under section 121(4) of the Magistrates’ Courts Act 1980 that magistrates’ courts must sit in open court, articles 6 and 10 of the European Convention on Human Rights, and was contrary to Part 16 of the Criminal Procedure Rules 2014 and natural justice. Mr Sanders conceded that the decision to exclude Mr Jerrard and others was unlawful, but only because court managers had acted inconsistently with HMCTS policy. He contended that HMCTS had a free-standing power to exclude individuals from court buildings deriving from its common law powers as occupier to confer an implied licence on the public subject to conditions and to withdraw that licence. He acknowledged that HMCTS must exercise these powers in accordance with public law principles and that HMCTS policy required consulting the appropriate judicial office holder before barring anyone claiming legitimate business at the court, which had not been done. However, Mr Sanders maintained that HMCTS was the primary decision maker, that the final decision whether to exclude lay with HMCTS rather than the judiciary, and that HMCTS’s view must prevail even in the case of disagreement.

Mr Justice Leggatt, giving the judgment of the court, rejected this submission. The court emphasised that the principle of open justice requiring court proceedings to be conducted in public is a fundamental principle of the common law. In the case of criminal trials in magistrates’ courts, the principle is embodied in section 121(4) of the Magistrates’ Courts Act 1980. The court held that it is implicit in the open justice principle that members of the public who wish to attend a criminal trial have a right to do so, a right with deep historical roots. In Daubney v Cooper (1829) 10 B & C 237 the Court of King’s Bench held that magistrates were liable in trespass for removing an individual from the courtroom without a specific reason, and Bayley J said that it is one of the essential qualities of a court of justice that its proceedings should be public and that all parties who may be desirous of hearing what is going on have a right to be present provided they do not interrupt the proceedings and there is no specific reason why they should be removed.

The court held that it is a necessary incident of the right to attend a criminal trial that a member of the public may enter the court building in which the trial is taking place. The court rejected the submission that HMCTS, as occupier, has the ordinary power of an occupier to give or withhold permission to enter the building in its discretion. Access to a court building for the purpose of attending a public hearing is a matter of legal right and does not require any express or implied permission from the occupier. The right is qualified, first, by the court’s power to restrict public access where necessary in the interests of justice to prevent disorder, and second, by the Courts Act 2003. Section 53 confers powers on court security officers to exclude or remove persons from court buildings in specified circumstances. Section 53(2)(b) provides that a court security officer may exclude or remove any person from a court building if it is reasonably necessary to do so for one of the purposes given in subsection (3), namely enabling court business to be carried on without interference or delay, maintaining order, or securing safety. The test of reasonable necessity is an objective test and the ultimate arbiters of whether the test is satisfied are the courts.

The court held that the powers under section 53 may lawfully be exercised without reference to the judiciary in plain cases, for example where an individual is drunk or violent, but that where a member of the public is seeking to attend a particular court hearing and there is a dispute or room for dispute about whether they have the right to do so, that question should be decided by the court concerned at the time the question arises. If a person is wrongly denied entry they should not be left to incur the burden of bringing proceedings after the event when the opportunity to be present has been lost. Furthermore, decisions to exclude members of the public potentially affect the fairness and validity of the court process, so it is integral to the court’s ability to control its own process that such decisions are taken by the court. The court held that the present case, where a decision was made in advance to refuse entry to anyone associated with a particular campaign group, was a paradigm example of a situation where reference to the court was essential.

The court rejected Mr Sanders’s argument that HMCTS must retain a residual right to exclude people even if magistrates or a judge have decided they ought to be admitted. The court expected that such an unresolvable disagreement would seldom if ever arise, and that if it did the court would hesitate before making an order which, if disobeyed, would put court managers and staff in contempt. The court held that in the present case the magistrates had decided that Mr O’Connor’s supporters should not be admitted without being advised that it was for them to judge whether it was reasonably necessary to exclude the individuals concerned for one of the purposes specified in section 53(3) of the Courts Act, and in the mistaken belief that the issue was an administrative matter for court managers. They therefore made the decision on an incorrect legal basis and without any inquiry into the facts. The court further considered that fairness required that at least one representative member of the group should have been given an opportunity to make representations before a final decision was taken to exclude them from the court building.

The court was satisfied that if a proper procedure had been followed the magistrates would have reached a different decision. Inquiries would have elicited that the HMCTS managers had no information from the police or any other source indicating any plan or intention to hold a protest or cause disruption within the court building, that they had no information that any of the members of the public who wanted to enter the court building had any previous history of causing disruption, that the only incident Mr Harvey had in mind involving Fathers4Justice had occurred in 2008 and there had been no further incidents since then, that Mr Harvey also relied on an incident involving an entirely unrelated protest group which was plainly an irrelevant consideration, and that Mr O’Connor had given undisputed evidence that he had attended many court hearings over the years and that at such hearings he had always been courteous and polite, his supporters had never previously been excluded and had never caused any disturbance. In particular, Mr O’Connor had already appeared twice before the Hampshire magistrates on 23 September and 12 November 2014, on which occasions peaceful protests of the same kind had been held outside the court, supporters including some of the same people had been present at the hearings, and there had been no disruption. The court held that in these circumstances it was plainly not reasonably necessary to exclude anyone from Aldershot Magistrates’ Court on 20 February 2015 and the exclusion was unlawful.

The court then considered whether the hearing was in public. Mr O’Connor contended that he was denied his right to have his case heard in a court open to the public by the unlawful exclusion of people who wished to observe his trial. Dr Pelling submitted that the question is one of fact and degree and argued that the extent of the restriction on access, with some 90 per cent of those attempting to enter being unlawfully refused entry, was so substantial that the hearing could not fairly be described as having been in open court. Mr Sanders did not defend the advice given to the magistrates that the presence of a member of the press necessarily meant the proceedings were in open court, but submitted that the hearing was nevertheless open to the public. He emphasised that nothing happened in the trial beyond reciting the charge and Mr O’Connor’s plea and deciding whether the excluded individuals should be allowed to attend the hearing before the magistrates granted an adjournment, so that even if the hearing did not take place in public it is unnecessary to grant any relief.

The court considered the case of R v Denbigh Justices, ex p Williams [1974] QB 759, in which Lord Widgery CJ indicated that the question whether proceedings are in open court has to be answered by a broad consideration of all the circumstances. The court accepted that the question of when a hearing ceases to be open to the public is one of fact and degree and that the essential question is whether the nature and extent of the exclusion are such as to deprive the hearing of its open and public character. The court concluded that this was the effect of the exclusion in the present case. Mr O’Connor’s case had aroused strong interest, not only among some supporters of his organisation but also among individuals involved in local Hampshire politics. To prevent all the people who came to support Mr O’Connor, without any valid reason, from exercising their right to observe the proceedings not only created a strong and understandable sense of grievance but had the consequence that justice could not be seen to be done. The court agreed that as the trial was adjourned before the prosecution had opened their case it was unnecessary to make any order quashing the proceedings, but considered it right to record the conclusion in a declaratory judgment.

The court also considered criticism of a procedure outlined in the HMCTS policy documents for issuing a “banning letter” to inform an individual that he or she is banned from entering a particular court building for a specified period. Dr Pelling submitted that HMCTS has no lawful authority to issue such letters and that to do so involves a usurpation of powers which belong only to the courts. Although that question did not arise for decision, as no banning letter was issued in this case, the court considered the criticism to have considerable force. The court noted that the pro forma banning letter annexed to the HMCTS operating procedures assumes that HMCTS has the ordinary rights of an occupier to restrict entry to its premises, an assumption the court had explained to be mistaken. The court noted that arguments were advanced based on articles 6 and 10 of the European Convention on Human Rights but found it unnecessary to address those arguments because the common law had all the resources needed to protect the rights concerned.

In short, the Divisional Court declared that the refusal of HMCTS staff and of the magistrates to allow Mr Jerrard and other members of the public to attend Mr O’Connor’s trial on 20 February 2015 was unlawful and that in consequence no valid proceedings in Mr O’Connor’s trial took place on that day.

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Scott v Scott [1913] AC 417
Al Rawi v Security Service [2012] 1 AC 531
McPherson v McPherson [1936] AC 177
Denbigh Justices ex parte Williams [1974] QB 759
R v Leicester City Justices [1991] 2 QB 260
Laporte v Metropolitan Police Commissioner [2015] EWHC 3574
Storer v British Gas plc [2000] 1 WLR 1237
R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court and another (Article 19 intervening) [2013] QB 618