LORD HEWART C.J. stated the grounds of
the rule and continued: It is clear that the deputy clerk was a member of the
firm of solicitors engaged in the conduct of proceedings for damages against the
applicant in respect of the same collision as that which gave rise to the charge
that the justices were considering. It is said, and, no doubt, truly, that when
that gentleman retired in the usual way with the justices, taking with him the
notes of the evidence in case the justices might desire to consult him, the
justices came to a conclusion without consulting him,
and that he scrupulously abstained from referring to the case in any way. But
while that is so, a long line of cases shows that it is not merely of some
importance but is of fundamental importance that justice should not only be
done, but should manifestly and undoubtedly be seen to be done. The question
therefore is not whether in this case the deputy clerk made any observation or
offered any criticism which he might not properly have made or offered; the
question is whether he was so related to the case in its civil aspect as to be
unfit to act as clerk to the justices in the criminal matter. The answer to that
question depends not upon what actually was done but upon what might appear to
be done. Nothing is to be done which creates even a suspicion that there has
been an improper interference with the course of justice. Speaking for myself, I
accept the statements contained in the justices' affidavit, but they show very
clearly that the deputy clerk was connected with the case in a capacity which
made it right that he should scrupulously abstain from referring to the matter
in any way, although he retired with the justices; in other words, his one
position was such that he could not, if he had been required to do so, discharge
the duties which his other position involved. His twofold position was a
manifest contradiction. In those circumstances I am satisfied that this
conviction must be quashed, unless it can be shown that the applicant or his
solicitor was aware of the point that might be taken, refrained from taking it,
and took his chance of an acquittal on the facts, and then, on a conviction
being recorded, decided to take the point. On the facts I am satisfied that
there has been no waiver of the irregularity, and, that being so, the rule must
be made absolute and the conviction quashed.
LUSH J. I agree. It must be clearly
understood that if justices allow their clerk to be present at their
consultation when either he or his firm is professionally engaged in those
proceedings or in other proceedings involving the same subject matter, it is irrelevant to
inquire whether the clerk did or did not give advice and influence the justices.
What is objectionable is his presence at the consultation, when he is in a
position which necessarily makes it impossible for him to give absolutely
impartial advice. I have no doubt that these justices did not intend to do
anything irregular or wrong, but they have placed themselves in an impossible
position by allowing the clerk in those circumstances to retire with them into
their consultation room. The result, there being no waiver, is that the
conviction must be quashed.
