The Divisional Court quashed the applicant's conviction of being drunk and disorderly and assaulting a police officer in the exercise of his duty.
The applicant complained that Sir Bryan Roberts, QC, a metropolitan stipendiary magistrate, perused a diary to check the day of the offence when a police officer was being cross- examined. During the applicant's examination in chief, the magistrate looked at a law report cutting to see if it could be relevant. The solicitor representing the applicant stopped the examination in chief and the magistrate continued for a further half minute reading the report.
The clerk told the magistrate that the solicitor feared evidence might have been missed and an exchange followed between the magistrate and solicitor as to whether relevant evidence might have been missed.
G E Heimler (Hudson Freeman Berg) for the applicant; N S Garnham (Treasury Solicitor) for the magistrate.
LORD JUSTICE ROSE said that the correct test was 'whether there is the appearance of bias, rather than whether there is actual bias'. Would a reasonable and fair-minded person sitting in court and knowing all the relevant facts have reasonable suspicion that a fair trial for the applicant was not possible.
It was a judicial duty to give the case an undivided attention.
There was nothing inherently objectionable in a magistrate looking briefly at his diary to check evidence given as to dates, but a lengthy perusal of a diary during the giving of evidence, or perusal of a diary when evidence was being given not about dates but about other matters might well give rise to a different conclusion. The perusal of the diary in the present case was not so inappropriate as to give rise to a reasonable suspicion of inattention in the mind of the reasonable observer.
But the cutting seemed to be in a different category. The effect of the perusal of the cutting had to be assessed in the context of the earlier diary perusal. When evidence was being given, particularly by a defendant in chief, it was not likely to be appropriate for a magistrate to study a law report without halting proceedings.
The inescapable conclusion seemed to be that the reasonable and fair minded person knowing all the relevant facts, would rightly entertain a reasonable suspicion that the magistrate's attention had been divided and incomplete. That would be so whether or not the magistrate himself believed he had been properly attending to the evidence.
Mr Justice Waller concurred.
Ying Hui Tan, Barrister