Gill, R (on the application of) v Lord Chancellor's Department [2003] EWHC 156 (Admin)

Case No CO/221/02[2003] EWHC 156 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 27 January 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
Between
THE QUEEN ON THE APPLICATION OF GILLClaimant-v-
Between
LORD CHANCELLOR'S DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR GILL APPEARED IN PERSON for in personMR G CLARKE (instructed by Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE MAURICE KAY: This is an application for judicial review brought by Mr Gordon Gill. For a number of years he sat as a Justice of the Peace in Newcastle Upon Tyne. The decision which he seeks to challenge is a decision of the Lord Chancellor removing him from office. By section 5 of the Justices of the Peace Act 1997 it is the Lord Chancellor who appoints Justices of the Peace and it is in the Lord Chancellor that there is vested the power of removal. In order to assist him in that task, the Lord Chancellor has Advisory Committees on Justices of the Peace which relate to particular areas.[2]In the present case a complaint was made by a member of the public against Mr Gill. There was a hearing before a panel, convened by the Advisory Committee for the Magistracy in Newcastle Upon Tyne. The Panel recommended to the Lord Chancellor that Mr Gill be removed from office. On 18th November 2001 the Lord Chancellor wrote to Mr Gill informing him that he was accepting the recommendation of the Advisory Committee, through its Panel, and was proposing to remove Mr Gill from office. There was some further correspondence and the Lord Chancellor reiterated his position in a letter dated 11th February 2002. As I have indicated, it is that decision which Mr Gill seeks to challenge in these proceedings.[3]Originally, he sought to maintain that challenge by reference to a number of grounds that were set out in his claim form. He was refused permission to proceed on the papers. However, at a renewal hearing before me on 3rd September 2002 I granted him permission to proceed on a limited basis. It is upon that limited basis that the matter has come back to me for substantive hearing today.[4]It is necessary that I say something about the original complaint which gave rise to these matters. The complaint was made by Mr Glover, who is the licensee of the Killingworth Arms, in Killingworth Village. The Killingworth Arms is immediately across the road from Mr Gill's house. Circumstances arose in which Mr Gill complained to Mr Glover about the installation of CCTV cameras at or outside the Killingworth Arms.[5]I take this next passage from Mr Glover's evidence before the Advisory Committee's Panel which sat on 13th June 2001. Mr Glover said:
"He approached me on a Tuesday evening indicating he would like a word. I can't remember the exact date. I replied 'yes, what do you want?' He said he wanted a word in private. We spoke alone in the kitchen. He believed the installation of the cameras was lowering the value of properties in the area. Mr Gill is an Estate Agent. There had been an incident where a fight had spilled into the car park and he told me he had informed the police. He held me responsible. He said to me 'Do you know I am a magistrate? I could have a word in someone's ear and get your licence revoked' I told him he was out of order. He replied 'You know what I mean'."
Mr Glover made a complaint about the incident which he was describing. He took the view that it was wholly inappropriate for a magistrate to say what he attributed to Mr Gill. If indeed Mr Gill did utter those words, then no one would take issue with that view. It is, of course, not for me to form any view as to whether he uttered the words or not. It is apparent that in evidence to the Panel Mr Gill denied using those or similar words and denied using any words that might be said to have been unbecoming of a magistrate.[6]The Panel came to the conclusion that it preferred Mr Glover's version of events. In its report and recommendation it stated that the members had unanimously preferred Mr Glover's version for the following reasons:
"a) He gave his evidence in a completely straightforward, compelling and convincing manner (b) Under cross-examination he did not contradict himself nor lessen the cogency of his testimony (c) He genuinely appeared to be threatened and intimidated by Mr Gill's remarks (d) No motive or explanation was established to explain or suggest why Mr Glover should have invented or be mistaken about what had happened or was said."
The Panel went on to say:
"We therefore found as a fact that Mr Gill did say to Mr Glover "
Do you know I am a Magistrate?' I could have a word in someone's ear and get your licence revoked." On the basis of that finding the Panel, unsurprisingly, concluded that that was conduct which was wholly inappropriate and a serious abuse of judicial office, which, if let unchecked, would undoubtedly undermine public confidence in the courts and in the integrity and propriety of lay magistrates and in the judicial system. The Panel considered that it had no alternative but to recommend to the Lord Chancellor the removal of Mr Gill from office. As I have related, the Lord Chancellor accepted that recommendation.[7]At the heart of this case lies a document issued by the Lord Chancellor in July 1998 entitled:
"Lord Chancellor's Directions for Advisory Committees on Justices of the Peace"
. It is a lengthy document. It is not confined to matters of disciplinary procedure. It is guidance over a very wide area relating to the magistracy, including matters of selection and removal. In the foreword, appearing above the Lord Chancellor's signature, there is to be found this passage:
"My Committees, for their part, are entitled to look for clear instructions on how they should discharge their important public duties. These new directions provide that information. They will, I believe, ensure that the best practice is followed by all Committees; that there is consistency of approach; and, as importantly, that the public may now have confidence in a system which is, so far as practicable, both open and accountable."
It is apparent from a number of points in the guidelines that the Lord Chancellor expects them to be followed. In the introduction, in a passage relating to the selection process, it is spelt out:
"Whilst there must be a standard and consistent approach to the selection process, it is not immutable and where, following careful consideration, change is considered necessary, amendments to these Directions will be issued. The Lord Chancellor does not, however, expect any departure from their provisions without his express approval."
The part of the guidelines which relate to this case is to be found in Chapter 19 which is headed "Conduct and Competence". It includes procedural provisions for application when a magistrate is the subject of complaint. The procedure before the Panel is referred to in the guidelines as a "Complaints Investigation Hearing." Paragraph 19.15 is in these terms:
"Those taking part in complaints investigation hearings must always have in mind that they involve members of the judiciary. Moreover whilst they are not in themselves trials or tribunal hearings, every care must be taken to ensure that the principles of natural justice are observed and that the proceedings are seen by the magistrate, or others attending the hearing, as fair and such as to withstand the test of any subsequent judicial scrutiny. A record of the proceedings must always be kept."
That may be accurately summarised as a general provision for fairness in the obvious sense of fairness to both sides.[8]I then turn to the all important paragraph 19.16, which is in these terms:
"The hearing should generally take the form of an enquiry by three or four persons drawn either from the Advisory Committee or its Sub-Committees and should normally consist of: . a chairman who may be the Chairman of the Advisory Committee or his or her nominee . two or three members, who, as far as practicable, are not members of the same bench as the magistrate being seen and in any event at least one of whom must be from a different bench. . wherever possible, a non-magistrate member . the Secretary of the Advisory Committee or his or her representative . in some cases it may be appropriate for the panel to be chaired by a Circuit Judge. Advice in this regard may be obtained from the Deputy Secretary of Commissions . it will sometimes be necessary, in the interests of justice, to hear from others who may be able to provide evidence in relation to the allegations. Such persons may, if they wish, be accompanied but unless there are wholly exceptional circumstances they should be expected to speak for themselves."
[9]The Panel which inquired into Mr Glover's complaint in the present case comprised five people. The chairman was indeed the chairman of the Local Advisory Committee, who is himself a Justice of the Peace on the Newcastle Upon Tyne Bench. There were three other Justices of the Peace, all of whom were Justices of the Peace in Newcastle Upon Tyne. The fifth member of the Panel was not a magistrate.[10]The guidelines were not known to Mr Gill at the time of the hearing, or indeed at any time until they were referred to by the Lord Chancellor in the correspondence to which I have referred.[11]The case for Mr Gill is that the constitution of the Panel did not comply with the guidelines in that, quite apart from the chairman, the three magistrate members were all from the Newcastle Upon Tyne Bench. He relies in particular on the provision set out at the second bullet point in paragraph 19.16:
"Two or three members who, as far as practicable, are not members of the same bench as the magistrate being seen and in any event at least one of whom must be from a different bench."
He says that if he had known of the procedure at the time he would have objected to the Panel as it was constituted. His case is that he had a legitimate expectation that the Panel would be constituted in accordance with prescribed procedures, and that that expectation has been breached.[12]It is plain from a perusal of paragraph 19.16 that, for whatever reason, the draughtsman did not have in mind the fact that in the metropolitan areas it is common for the area covered by a particular Advisory Committee to have within it only one Bench of magistrates. In these areas it is usual for an Advisory Committee to relate to a number of separate Benches and, within those areas, as I understand it, it is common for panels to be constituted containing magistrates from within the same Advisory Committee area but from different Benches within that area. One of the ways in which Mr Gill expresses his complaint is that the constitution of the Panel in the present case operated in a somewhat discriminatory way against him, as it might have done in relation to any other metropolitan magistrate, in that, if the provisions of paragraph 19.16 permit a panel to be constituted as his was, those in metropolitan areas receive a different and lesser guarantee of fairness and independence than those in other areas.[13]When Mr Gill's complaints were raised with the Lord Chancellor, whose final letter of 11th February 2002 contains this paragraph:
"The Direction that was not complied with sets out the normal procedure for investigating complaints. It does not set out a mandatory procedure. The normal procedure could not be fully complied with in this case as the Newcastle Upon Tyne Advisory Committee is only responsible for one bench and consequently has no members or Sub Committee members from different benches upon whom it may call for assistance. Although I accept you had a legitimate expectation as to the normal procedure to be followed, that one member of the panel would be from another bench, I do not consider it was unfair or inconsistent with good administration that your expectation could not be met on this occasion. I do not believe any unfairness resulted from the fact that the magistrate members of the panel were from your own bench. There is no suggestion that the panel had pre-judged the [issues] involved. They heard conflicting evidence, and did not believe yours. I do not accept that the investigation procedure was unfair in the sense of being contrary to any legal principle or otherwise, and I do not believe it would fail the test of judicial scrutiny. The procedure observed the rules of natural justice..."
[14]In evidence submitted to the court by an official of the Lord Chancellor's Department, at one stage it appeared to be suggested that it had not been possible to comply with paragraph 19.16 in the circumstances of this case. However that position is no longer maintained on behalf of the Lord Chancellor. It seems to me that it was incorrect. It would certainly have been possible to coopt one or more magistrates from the area of a different Advisory Committee. There is some evidence before me that that has been done in one other area and I know not whether it has been done elsewhere. The clear impression I have is that, in fact, no one thought about this problem at the time and, therefore, the possibilities and practicalities of importing the magisterial membership from a different area was simply never addressed. In my view, if it had been, it is extremely unlikely that it would have been impracticable to appoint one or more magistrates from a different Advisory Committee area.[15]The central feature of the case for the Lord Chancellor is that, notwithstanding any legitimate expectation (he having conceded one in the letter of 11th February) in fact no unfairness arose in this case and, therefore, the conclusion and recommendation of the Advisory Committee Panel was not vitiated.[16]I regret to say that I do not accept that analysis. If there had been no guidelines it may be that the procedure adopted would have been considered to have been fair. However, there are guidelines. They contain two mechanisms designed to achieve independence and impartiality. The first concerning the presence of a non-magistrate, was complied with in the present case. The second, relating to the introduction of an element of external representation amongst the magistrate members, was not complied with in the present case. There has been, at different stages, some reliance placed by the Lord Chancellor upon the actual wording of paragraph 19. I take full account of the facts that these were guidelines, neither more nor less, and that they are permeated with the language of "generally", "normally" and "as far as practicable". However, I also attach significance to the words "in any event" and "must" in the vital passage. Those words seem to me to have a significance to which this court ought to attach weight. Moreover, if one stands back and asks whether a panel of five, none of whom was a magistrate from a different Bench, and only one of whom was a non-magistrate, was consistent with the letter or spirit of paragraph 19.16, I have to say that, in my judgment, it was not. One only has to test it this way, as Mr Gill invites me to do: if the Panel had taken the opposite view of the evidence and had found in favour of Mr Gill, I have no doubt that upon subsequently discovering the guidelines Mr Glover would have had an unanswerable application for judicial review. On behalf of the Lord Chancellor Mr Clarke submits that, if so, that would be on the ground of apparent bias. But I do not think it would be so limited. It would also be on the basis of a breach of his legitimate expectation that the procedure referred to in the guidelines had not been followed.[17]Mr Clarke has also made submissions on the issue of reliance. It is common ground that, as a matter of law, reliance is not a condition precedent to legitimate expectation: see R v Secretary of State for Education and Employment ex parte Begbie [2000] 1 WLR 1115 and R (on the application of Bibi) v Newham London Borough Council [2001] EWCA Civ 607. I accept, as Mr Clarke submits, that reliance may still be relevant as a matter of fact. But I do not consider it to be so in a case such as this when one is concerned with a procedure and its operation in a case where Mr Gill, as a magistrate, was facing an extremely serious allegation which would involve great damage to his reputation if established. In addition, in my judgment, there has not been established any good reason for departing from the provisions of paragraph 19.16 in this case. In my judgment, Mr Gill was not only entitled to a fair procedure, in the general sense, he was entitled by way of legitimate expectation to fairness underwritten by the provisions of the guidelines, absent any good reason to the contrary.[18]There has been some debate along the lines that the provisions are not mandatory or not prescriptive. In my judgment that is a rather sterile debate in the circumstances of this case. It is plain from the earlier passages in the guidelines, and from some of the language of paragraph 19.16 that these guidelines, though not properly described in all circumstances as mandatory, were, as the Lord Chancellor's official states in his first witness statement "considerably more detailed and prescriptive than any previously issued."[19]It follows from what I have said that, in my judgment, this application for judicial review succeeds. I will quash the decision to remove Mr Gill from the magistracy. That will necessitate, I imagine, a rehearing of Mr Glover's complaint before a differently constituted Panel. It is not for me to express any views whatsoever about the merits of the dispute between Mr Glover and Mr Gill. Indeed, inevitably, in the circumstances of the case, I have no such views. However, the matter must now go back for proper consideration.[20]MR CLARKE: My Lord, as to the form of relief, I would invite my Lord, on my Lord's judgment, to make an order to quash the decision of the defendant made on 18th November 2001 and to direct that the Advisory Committee reconsider the matter in accordance with the guidelines.

MR JUSTICE MAURICE KAY: Yes.

[22]MR CLARKE: That would probably be the proper order.[23]MR JUSTICE MAURICE KAY: Yes, I am sure it will be done in that form, certainly. I will add in to the transcript the fact that I have been told that the guidelines are going to be replaced anyway.[24]MR CLARKE: My Lord, yes. My Lord, I do ask for leave to appeal partly because of course the Practice Direction indicates that I must if the matter is to be taken further and I am not suggesting that it necessarily will be, but clearly the Department will have to consider the judgment and take advice. But I do just mention this point, my Lord, the case possibly raises an issue of some wider significance in the general law relating to legitimate expectation and that point is this: what is the true contents of the concept of fairness in relation to the law of legitimate expectation where you have a situation, as here, where, absent the material which founds the expectation, in this case the guidance, what went on might well have been fair, but because of the presence of some material, that the court has a concern as to the fairness of what went on, and it does raise potentially my Lord, I would say, a question which might be worthy of further consideration, but I will say no more than that.[25]MR JUSTICE MAURICE KAY: I shall not give you permission to appeal, you will have to ask elsewhere if you want to pursue it. Yes, Mr Gill?[26]MR GILL: Thank you, my Lord, my solicitor advises that I apply for costs, my Lord.

MR JUSTICE MAURICE KAY: Yes.

[28]MR GILL: I also have a human rights claim under Article 6, and my solicitor advises me to mention, and I am not aware of what this means particularly, but I think it has implications on my business and that is Part 1 of Protocol 1, perhaps the judge might enlighten me on that?[29]MR JUSTICE MAURICE KAY: Well, the case has been argued entirely on the basis of domestic law rather than under the Convention. What do you say about it, Mr Clarke?[30]MR CLARKE: My Lord, as to costs I clearly do not oppose any order for costs. Unless Mr Gill has his solicitor's bill here we will have to go for detailed assessment.[31]MR JUSTICE MAURICE KAY: I think with a person who has been represented until a late stage and then represents himself at the hearing that is probably best anyway.[32]MR CLARKE: Yes, clearly I do not oppose an order for costs in favour of Mr Gill subject to detailed assessment. As regards the other matters, my Lord, Mr Gill must take such advice as he sees fit as to what further steps he might take. But, in my submission, my Lord has dealt with this matter purely on the domestic law of legitimate expectation. There is no Article 6 point anyway because there was no determination here of the civil rights, in the limited sense in which that is understood.

MR JUSTICE MAURICE KAY: I am not sure about that.

[34]MR CLARKE: I would submit, without getting involved in a long argument about it, that it is the holding of a public office, it is not a contractual right. As we know, civil right means a private law right, generally speaking. But, my Lord, it is not something which has been before this court upon which my Lord has been asked to rule, or has ruled, that there has been any material infringement of Article 6 or of Article 1 Protocol 1.[35]My Lord, in my submission, as I say, if Mr Gill wants to do something about that, he wants to consider a claim under the Human Rights Act, he must take advice and take such steps as he is advised are appropriate.[36]MR JUSTICE MAURICE KAY: Even in section 7 of the claim form there was no expressed claim for damages.[37]MR CLARKE: Indeed, my learned friend, Mr Wise, in his submissions has not advanced it on the basis of the Convention argument. He has put it fairly and squarely on the basis of familiar concepts of legitimate expectation.

MR JUSTICE MAURICE KAY: Yes.

[39]MR GILL: I am sorry, my Lord, I beg to differ, in the application by my solicitor to the court that box was crossed with a "No", I pointed this out to my solicitor and she subsequently sent a separate letter saying that box should have said "Yes". It is in the procedure, it has been asked for, but not on that form. That was an error by my solicitor which she rectified later on.[40]MR JUSTICE MAURICE KAY: It has really formed no part of the argument before me, it was never in the submissions, and although I believe there was a reference to Article 6 at some stage, I do not think I have ever seen a specific claim for damages, have I?[41]MR GILL: If you bear with me, my Lord, I will show you the letter, I will point it out in the bundle.[42]MR JUSTICE MAURICE KAY: Yes. Very helpfully the associate has passed up to me your solicitor's letter of 17th May:
"We draw your attention to an error in our claim form. At page 3 there is a question regarding whether any issue arising from the Human Rights Act is relevant although the answer 'no' has been entered it should in fact be yes."

MR JUSTICE MAURICE KAY: It does not refer to a claim for damages.

[44]MR GILL: What it merely says, my Lord, is that in the claim form for the judicial review that she incorrectly put a "no" there and this letter rectified that.[45]MR JUSTICE MAURICE KAY: Yes, it is one thing to say that the Human Rights Act arises, it is another thing to say that you have a claim for damages under it.[46]MR GILL: I am only advised by my solicitor, my Lord.[47]MR CLARKE: Sorry, the reference to Article 6 came with the preclaim correspondence. Article 6 was asserted in the letter before claim from Mr Gill's solicitors, not property, just Article 6. Then it was dealt with in the Lord Chancellor's response taking the point that I have taken, my Lord, that makes it debatable whether there is a civil right engaged. We did not go any further than in terms of the case.[48]MR JUSTICE MAURICE KAY: I am going to say absolutely nothing about it by way of order. It seems to me that it has not been raised and, if I may say so, Mr Gill, I think what Mr Clarke suggests is correct. If you want to contemplate a damages claim under the Human Rights Act perhaps it would be a good idea to seek some advice. I do not encourage that because I think really these proceedings have now given you all you are ever likely to obtain from them.[49]MR GILL: I accept the remedy in full, my Lord.[50]MR JUSTICE MAURICE KAY: There we are. Thank you both very much.