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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
    1. Boyce v Paddington Borough Council [1903] 1 Ch 109
    2. Gregory and Another v London Borough of Camden [1966] 2 All ER 196
    3. R v Thames Magistrates Court, ex parte Greenbaum [1957] LGR 129
    4. R v Greater London Council, ex parte Blackburn [1976] 3 All ER 184
    5. Supreme Court Act 1981
    6. Inland Revenue Commissioners and National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93
    7. R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551
    8. R v Secretary of State for the Environment, ex parte Rose Theatre Trust Co [1990] 1 All ER 754
    9. R v Inspectorate of Pollution and another, ex parte Greenpeace Ltd [1994] 4 All ER 329 (No 2)
    10. R v Secretary of State for Foreign Affairs, ex parte World Development Movement Ltd [1995] 1 All ER 611
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Felixstowe Justices, ex parte Leigh and another [1987] 1 All ER 551

WATKINS LJ: The respondents to the application for judicial review which, with leave, is before us, are the clerk and the deputy clerk respectively to the Felixstowe, Ipswich and Woodbridge justices. It is made by the proprietors of one of the best-known Sunday newspapers and the chief reporter on that newspaper, Mr David Leigh, who is a very experienced and successful journalist, especially in the sphere of the criminal law, about which he has written in books and reported on in countless cases heard in magistrates' and higher courts in this country. The application is, he says, supported by the National Union of Journalists which represents most court reporters in Great Britain, and by the Guild of British Newspaper Editors which represents all editors of provincial newspapers, and by the Society of British Editors which represents about 250 editors of national newspapers and journals and editors working in television. For ease of reference I shall refer to him hereafter as the applicant, on the understanding that he has his employers with him in every sense in pursuit of the relief sought.

That relief arises from a decision of the deputy clerk, on 30 April 1985, to refuse to disclose to the applicant the identities of the justices who heard R v Sangster and the policy of the justices who sit at Felixstowe, Ipswich and Woodbridge and their clerk to withhold the names of justices during the hearing of cases, and afterwards, from the public and the press.

The applicant seeks an order of mandamus directing the clerk to disclose to him the names of the chairman and the other justices who tried Sangster over two days ending on 11 April 1985, and a declaration that the policy of the justices and the clerk as a matter of discretion or otherwise to withhold from the public and the press the identity of justices either hearing or who have heard cases is contrary to law.

The grounds relied on are (1) that the clerk was wrong in law in refusing to disclose to the applicant in response to his bona fide inquiry the names of the justices who tried Sangster so as to enable the applicant to exercise his right fully to report the case, (2) that the policy of refusing to disclose the identities of justices is wrong in law and contrary to the principle of open justice which, in the absence of statutory provision to the contrary, requires the identity of justices as well as the proceedings over which they preside to be freely reportable, and (3) that the clerk's grounds set out in his letter to the applicant, of 3 May 1985, were unreasonable and not a justifiable departure from the 'open justice' principle.....

The policy to withhold the names of justices originated in 1976 in circumstances explained in his affidavit by Mr Sharpe, the then clerk to the Ipswich justices. He became clerk in 1953. In 1978 he became clerk to the amalgamated benches of Ipswich, Felixstowe, Orwell and Woodbridge. He says that in 1976 one of the Ipswich justices was involved in an incident when sentencing a man. Afterwards the justice, whose affidavit fully explains the circumstances which appear not to merit any kind of criticism of him, received abusive telephone calls which upset him very much. He discussed the matter with his fellow justices who agreed on a policy of their names not being disclosed. This policy was continued on the amalgamation of the benches.

This policy has been adopted in ten other magistrates' courts in various parts of the country and partially adopted in a few others. Adoption of it is said to be on the increase. The Law Society has expressed its apprehension about it.

In July 1985 the Council of the Magistrates' Association passed the following resolution:

"It does not appear necessary, and will frequently be impracticable, for the names of adjudicating magistrates to be publicly listed before courts sit. The names of adjudicating magistrates should normally be available on request by persons having a bona fide interest (e.g. prosecutor or defendant or their legal representatives or press representatives) during or after proceedings in court but there will be a small number of occasions when it will be in the interests of justice for the names to be withheld. Names should be withheld where there are substantial grounds for belief that the magistrates concerned, or members of their families, or other associates might in consequence of the proceedings be subject to violence or harassment. Examples are where defendants are believed to be members of terrorist groups, or of other organisations habitually using violence or harassment to achieve or publicise their objectives".....

There is no doubt in my mind that the policy of the Felixstowe justices as originally and most recently stated is highly controversial. It is of acute concern to the press, the more so because it is being adopted in an increasing number of other magistrates' courts and it introduces into the realm of public justice a previously unheard of anonymity of a number of those who have taken an oath to discharge it. It is a unique anonymity in discharge of the judicial function, in my experience.....

The role of the journalist and his importance for the public interest in the administration of justice has been commented on on many occasions. No one nowadays surely can doubt that his presence in court for the purpose of reporting proceedings conducted therein is indispensable. Without him, how is the public to be informed of how justice is being administered in our courts? The journalist has been engaged on this task in much the same way as he performs it today for well over 150 years......

There is nowhere to be found any statutory provision or rule which entitles a justice to anonymity in any circumstance. The naming of a justice is scarcely referred to in legislation. I have found two instances of it. By s 8(4) of the Magistrates' Courts Act 1980 a report of committal proceedings may be published which contains the identity of the court and the names of the examining justices. Rule 36 of the Magistrates' Courts Rules 1981, SI 1981/552, provides that any record kept in pursuance of the rule in domestic proceedings should indicate the names of the justices constituting the court by which a decision was made.

So far as I have been able to ascertain, anonymity has never been claimed other than by the number of justices I have mentioned by anyone who can be said to be a judicial or quasi-judicial person. This applies as much to High Court judges and circuit judges as to, for example, members of tribunals. An inspector at a planning inquiry is by statutory instrument disentitled from being anonymous. It would, I think, be thought outrageous by trade unions and employers associations if they were not entitled to know the identity of members of employment tribunals. Many of the persons I have mentioned are subjected to criticism, vilification even at times, and suffer from being pestered by telephone and otherwise by persons who bear some grievance, and, moreover, occasionally by being wrongly approached by the press. But such intrusions into their private lives judges and others have inevitably to put up with as a tiresome if not worse incidence of holding a judicial office. Consider too the position of jurors, interference with whom is unhappily not unknown, especially these days. They are known persons. Their names are announced in open court before they take the oath.

I can easily understand that from time to time those justices who are subjected to intolerable invasions of their privacy think that they ought to have some protection against this form of unjustifiable behaviour.

However, whilst some forms of protection against intrusion into privacy are available and often used where necessary, I do not see how in principle there can be any justification for a policy, the purpose of which is to keep secret the names of justices both when they are sitting and afterwards. Collective responsibility is not, in my judgment, a good and sufficient reason to defeat the principle which I believe to be that where open justice prevails so shall those who do justice be known.

I would regard and I believe the general public likewise would regard a policy such as that maintained by the Felixstowe justices and their clerk to be inimical to the proper administration of justice and an unwarranted and an unlawful obstruction to the right to know who sits in judgment. There is, in my view, no such person known to the law as the anonymous JP.

I do not for one moment suggest that the right to know involves the disclosure of any more than the name of a justice. No one can demand the address and still less the telephone number of a justice of the peace. Moreover, a clerk to justices would, it seems to me, act with justification in refusing during and after a hearing to give the name of one of the justices to a person who the clerk reasonably believes requires that information solely for a mischievous purpose. Save for such considerations as that, I would hold that the bona fide inquirer is entitled to know the name of a justice who is sitting or who has sat on a case recently heard.

I turn finally to the question of the applicant's locus standi. Leave to apply for judicial review was granted to the applicant by Forbes J at an ex parte hearing. His prima facie view of standing is subject to a re-examination here of this question, in the light of the fuller evidence and argument presented to us.

I take as my starting point the words of Lord Wilberforce in IRC v National Federation of Self-Employed and Small Businesses Ltd (the Fleet Street Casuals case) [1981] 2 All ER 93 at 96, [1982] AC 617 at 630..... This applicant, I repeat, seeks from this court twofold relief, in the form of (1) an order for mandamus directing the clerk to reveal to the applicant the names of the justices who tried Sangster and (2) a declaration that the policy of the Felixstowe justices and/or of the clerk (whether by discretion or otherwise) of withholding from the press and public the identity of the justices who hear particular cases is contrary to law. I should add here that at the hearing before us the applicant did not pursue, because of the staleness of the matter, a further declaration, originally sought, that he was entitled to publish the identities of the justices who tried Sangster.

The respondents' counsel did not dispute that in both the extant applications the defendants, their legal representatives and press reporters in court at the time of the trial would have had locus standi. Indeed, we were referred by him, inter alia, to a number of recent applications for judicial review in which the press (under different guises) present in court were either held or assumed to have had sufficient interest in the challenge made by them to decisions of or rulings by justices in court (see R v Horsham Justices, ex p Farquharson [1982] 2 All ER 269, [1982] QB 762 (local newspaper proprietor and journalist inter alios), R v Reigate Justices, ex p Argus Newspapers and Larcombe (1983) 5 Cr App R (S) 181 (newspaper publisher and editor) and R v Arundel Justices, ex p Westminster Press Ltd [1985] 2 All ER 390, [1985] 1 WLR 708 (newspaper proprietor whose deponents were a crime reporter and a news editor)). Also worthy of mention in this connection is the part played by a journalist in R v Central Criminal Court, ex p Crook (1984) Times, 8 November.

How then is the sufficiency of the applicant's interest in the matter of each of the applications to be judged? I do not find it necessary for the purposes of this judgment to decide, as was urged on us by counsel for the respondents, whether or not a stricter test of sufficient interest still applies for the issue of mandamus, beyond saying that I am inclined to think it does not. The appropriate approach in this case, it seems to me, is for the court, in using what I regard as its undoubted discretion, to decide the question of sufficient interest on each application primarily within its factual context.

It will be recalled that the applicant had not been present in court during the Sangster trial. His initial inquiry about the case to the clerk to the justices was made by telephone to his deputy on 30 April, some three weeks after the end of the trial. As I have already said, it was the applicant's intention to write an article for his newspaper commenting on certain aspects of the case, including the already reported decision by or on behalf of the chairman of the Bench trying the case to refuse to divulge his name to a Daily Telegraph reporter at the court. The applicant's aim, it is clear, was not to report the case; it was to comment on various issues arising out of reports by others of the case. In particular, he wished to expose the apparent confusion amongst some newspapers over the effect of the court's order made under s 39 of the Children and Young Persons Act 1933 on the reporting of the case itself.

It does not seem to me that within the ambit of that endeavour the identity of the justices themselves was essential, or even material. For these reasons the applicant, in my judgment, has failed to show that he has a sufficient interest in the disclosure of the justices' names for this purpose. It therefore follows that he is not entitled on that ground to the order for mandamus.

Do different considerations apply to the application for the declaration in which it is sought to challenge the lawfulness of the policy of the justices and their clerk? I think they do. I have already emphasised the importance to the community at large of open justice and the role of the press as guardian and watchdog of the public interest in this matter, especially in magistrates' courts. Within the context of the administration of justice as a whole, the policy of routine non-disclosure adopted by the Felixstowe Bench and their clerk, shared in one form or another by a growing number of justices elsewhere, raises a matter of national importance.

Counsel for the respondents has argued vigorously that the class of interested persons in both these applications should be restricted at most to those persons present in court and that, since the applicant was not so present, he lacks the necessary standing before us. His position, it is argued, is comparable to that of a 'pressure group', a phrase employed in this context by Lord Diplock in the Fleet Street Casuals case [1981] 2 All ER 93 at 107, [1982] AC 617 at 644 in a much-quoted passage:

"It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped".

Counsel for the respondents, however, urges us not to be influenced by that view which, he says, is not characteristic of the more conservative stance of the majority of their Lordships' speeches in that case. I am conscious of that but nothing in those speeches, accepting all the cautionary words contained in them, opposes, I think, the view that the court has a large measure of discretion in determining whether sufficient interest has been established.

The application before this court seems to me to be brought either by the applicant himself, or possibly by the press through him, as guardian of the public interest in the maintenance and preservation of open justice in magistrates' courts, a matter of vital concern in the administration of justice.

In the context of the unlawful use of power without jurisdiction, which I take the policy of the Felixstowe justices and their clerk to be, I feel that a 'public spirited citizen' (see Lord Denning MR in the Fleet Street Casuals case [1980] 2 All ER 378 at 390, [1980] QB 407 at 422, echoed by Lord Diplock in the passage quoted above), would have a sufficient interest in the matter of the declaration sought by this applicant. I would so regard him at the very least as such a person.

No one has contended that he has acted as a mere busybody in coming to this court to ask for the relief he seeks. The seriousness of his purpose is apparent. I think he has a sufficient interest in the matter of the application. Accordingly, I would grant him the declaration sought.