Our pupil, Lidia Iancu, reviews the judgment in Saunders  EWHC 2544 (Admin) where comments made by the magistrates in the retiring room are subject to the principle of impartiality. A “get away with it” comment coupled with inadequate reasons given by the magistrates for granting the CPS application meant their decision had been vitiated by two public law errors.
The High Court held that the failure of magistrates to give reasons why it was in the interests of justice to adjourn a trial where the CPS had failed to warn an important witness of the trial date, and the appearance of bias from a comment made to the legal adviser by one of the magistrates in the retiring room about not letting the defendant “get away with it”, meant that their decision had been vitiated by two public law errors. The magistrates’ decision was quashed with a direction to acquit.
The case concerned an allegation of failing to provide a specimen of blood. The issue as stipulated on the PET was as follows: “I agreed to blood being taken but the doctor was unable to get a sample. He tried one arm then the other by which time I ended up having a panic attack. I do not like needles, and I suffer badly with anxiety. I did consent. I deny being obstructive.”
The CPS had not served a statement from the custody doctor. Directions about service of the doctor’s statement and availability for trial were given by the Court.
A day before the trial the CPS made an application to adjourn the trial. Under “Reason witness needs to attend to give evidence at the hearing”, the CPS said: “The witness was never warned due to not knowing their name and confusion by witness care about who the custody Dr was”. Under “What is the impact on your case?” the CPS said: “The Crown cannot prove the case without the witness.”
The bench granted the adjournment. They announced their decision as follows:
“It is clear that the prosecution (in its widest aspect) has not made sure of the available dates of the witness and have not ensured that the witness was warned the Doctor being essential to their case. Notwithstanding this we feel it is in the interests of justice to vacate tomorrow’s trial. We will allow the application.” Pressed by the defence to expand on those reasons, the presiding justice added: “The failure on the admin side should not affect the interests of justice.”
Once the magistrates retired the Legal Adviser made the defence aware of a comment the winger had expressed during the private deliberations namely: “this is why we have decided to vacate the trial as the defendant can’t get away with it because there has been an admin error”. This was in response to the Legal Adviser checking the magistrates’ reasoning in granting the decision to adjourn the trial.
The High Court held that what the presiding justice said expressed a conclusion: that an adjournment was justified in the interests of justice. This showed that he had applied the right overarching test but did not explain why it was in the interests of justice to adjourn the trial. Describing the prosecution’s failure to serve the doctor’s statement or warn him to attend the trial as an “admin error” did not help. Overall, what the presiding justice said did not demonstrate that he had taken account of the factors identified as relevant in the Practice Direction and authorities. The “reasons” were therefore inadequate.
In respect of the comment made by the winger, the High Court said that on its own, the comment could possibly be understood as a short and infelicitous way of saying that the seriousness of the offence charged told in favour of an adjournment. However, the case involved a combination of features: the lack of adequate reasons for the adjournment decision, the comment made in private during deliberations and the reaction of the very experienced Legal Advisor. Taking these three features into account, the Court held that the test for apparent bias was met.