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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> O'Connor & Anor, R (on the application of) v Crown Prosecution Service & Anor  EWHC 2792 (Admin) (04 November 2016)
Cite as: (2017) 181 JP 117,  1 WLR 2833, 181 JP 117,  EWHC 2792 (Admin),  WLR 2833
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
THE HONOURABLE MR JUSTICE LEGGATT
| THE QUEEN on the application of
MATTHEW GLYN O'CONNOR
|- and -
|ALDERSHOT MAGISTRATES COURT
|CROWN PROSECUTION SERVICE
HM COURTS AND TRIBUNALS SERVICE
Mr Oliver Sanders (instructed by The Treasury Solicitor) for the Defendant and the Second Interested Party
Hearing dates: 21 and 24 October 2016
Crown Copyright ©
Mr Justice Leggatt (giving the judgment of the court):
"Earlier today we took a decision to decline entry to some members of the public. That decision was taken based on the advice given by our legal adviser in open court, who in turn had been advised by those responsible for the health, safety and security issues in the court building. Mr O'Connor has requested an adjournment in order that he can lodge a judicial review with regard to this decision. We consider that on the grounds of open justice we should allow the requested adjournment."
(1) Was the restriction of entry lawful?
"Senior Persons on Site must consult the appropriate judicial office holder/justices' clerk if it is intended to bar or limit the access of anyone claiming legitimate business at the court (for example attendance as a party or witness in a case), and should keep the senior judicial office holder of the court informed."
The open justice principle
The right to attend a criminal trial
"… we are all of opinion 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, if there be room in the place for that purpose – provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed – have a right to be present for the purpose of hearing what is going on."
See also McPherson v McPherson  AC 177, 200; R v Denbigh Justices, ex p Williams  QB 759; R v Leicester City Justices  2 QB 260.
The statutory power to exclude
"Powers to exclude, remove or restrain persons
(1) A court security officer acting in the execution of his duty may exclude or remove from a court building, or a part of a court building, any person who refuses-
(a) to permit a search under section 52(1), or
(b) to surrender an article in his possession when asked to do so under section 54(1).
(2) A court security officer acting in the execution of his duty may-
(a) restrain any person who is in a court building, or
(b) exclude or remove any person from a court building, or a part of a court building,
if it is reasonably necessary to do so for one of the purposes given in subsection (3).
(3) The purposes are-
(a) enabling court business to be carried on without interference or delay;
(b) maintaining order;
(c) securing the safety of any person in the court building.
(4) A court security officer acting in the execution of his duty may remove any person from a courtroom at the request of a judge or a justice of the peace.
(5) The powers conferred by subsections (1), (2) and (4) include power to use reasonable force, where necessary."
When reference to the court is necessary
The lawfulness of the exclusion in this case
i) The HMCTS managers had no information from the police or from any other source which indicated that there was any plan or intention to hold a protest or cause disruption within the court building.
ii) The HMCTS managers had no information from the police or from any other source that any of the members of the public who wanted to enter the court building had any previous history of causing disruption.
iii) In his witness statement Mr Harvey has said that he had in mind an incident when a large group of Fathers4Justice protestors caused disruption at county courts in Bristol. Mr Harvey did not mention the date of this incident. Mr O'Connor's uncontradicted evidence is that the incident (which was a general protest not relating to any individual court hearing) occurred in 2008 and that there have been no further incidents of disruption involving Fathers4Justice since then.
iv) Mr Harvey also relied on another incident of past disruption caused by a different protest group, entirely unrelated to Fathers4Justice. That was plainly an irrelevant consideration.
v) Mr O'Connor has given undisputed evidence that he has attended many court hearings over the years (sometimes as a party and sometimes in other capacities) and that at such hearings he has always been courteous and polite, his supporters have never previously been excluded from the court and they have never caused any disturbance or disrupted the proceedings.
vi) In particular, in the instant case Mr O'Connor had already appeared twice before the Hampshire magistrates, on 23 September and 12 November 2014. On those occasions there had been peaceful protests held outside the court building of just the same kind as Mr O'Connor planned to hold on 20 February 2015, arranged through social media in just the same way. On those earlier occasions there had been no attempt to bar anyone from entering the court building, supporters of Mr O'Connor and Fathers4Justice had been present at the hearings including some of the same people who came to watch the trial on 20 February 2015 and there had been no disruption or disturbance.
(2) Was the hearing in public?
"I would have come to the same conclusion because I do not think that the question 'open court or no?' can depend on such minutiae as to whether at a particular moment there was a particular member of the public anxious to come in who was wrongly refused. Here the question 'open court or no?' has to be answered by a broad consideration of all the circumstances of the case …"
Note 1 Jeremy Bentham, Collected Works (1843) vol 9, p492. [Back] Note 2 Ibid, vol 4, p316. [Back] Note 3 See also r.16.2(3) of the Criminal Procedure Rules 2014, now r.6.2(3) of the Criminal Procedure Rules 2015. [Back]
Note 1 Jeremy Bentham, Collected Works (1843) vol 9, p492. [Back]
Note 2 Ibid, vol 4, p316. [Back]
Note 3 See also r.16.2(3) of the Criminal Procedure Rules 2014, now r.6.2(3) of the Criminal Procedure Rules 2015. [Back]