M v Director of Public Prosecutions

On an appeal by way of case stated, the High Court is confined to the facts contained in the stated case. It cannot receive additional evidence, unless the stated case is amended through the proper procedure or agreed factual errors are corrected.

A magistrates’ visit to the scene is not an impermissible reconstruction merely because a justice’s vehicle occupies the relevant parking space. The decisive question is what the tribunal actually intended and did. All parties must have an opportunity to attend and make representations, and submissions should be made in court or otherwise in the presence of all concerned.

Bias is assessed by asking whether a fair-minded and informed observer would conclude that there was a real possibility of bias.

The claimant was convicted in the High Wycombe Youth Court of causing criminal damage to a motor vehicle, contrary to sections 1(1) and 1(4) of the Criminal Damage Act 1971. He appealed by way of case stated.

The magistrates had conducted a site visit to assess whether a wall obstructed an eyewitness’s view. Their vehicle was parked in the space where the damaged vehicle had stood. The claimant argued that this amounted to participation in a reconstruction, denied natural justice, infringed article 6, and created an appearance of bias. He also sought to rely on evidence outside the stated case.

The central issues were whether the visit involved an impermissible reconstruction and whether the procedure gave rise to apparent bias.

1. The appeal was dismissed. The court was confined to the four corners of the stated case. The additional witness statements could not be considered because they were outside the facts found by the magistrates. Agreed minor factual errors could be corrected, but the proper route for omitted relevant matters was amendment of the stated case under section 28A(2) of the Supreme Court Act 1981. [4]-[6]
2. The court rejected the premise that the magistrates had conducted a reconstruction. Their stated purpose was to view the scene and assess the alleged obstruction of the eyewitness’s line of sight. Parking the magistrates’ vehicle in the relevant space did not constitute impermissible participation in the production of contested real evidence. [17]-[26]
3. Both parties were present at the view and the defence was able to make representations later in court. It was correct for the legal adviser to prevent a private discussion with one member of the Bench and to require submissions to be made when all parties were present. The court nevertheless stressed that, before any view, there should be absolute clarity about its purpose, the positions of persons and objects, and the procedure to be followed. Discussions should not take place at the scene. [24]-[25], [31]
4. The applicable bias test was whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias. The mere parking of the justice’s vehicle did not satisfy that test, and the defence retained a proper opportunity to raise any procedural complaint in court. [27]-[29]
5. Lord Justice Leveson would dismiss the appeal, and Mr Justice Sweeney agreed. There was no order for costs, subject to legal aid assessment of the claimant’s costs. [32]-[35]

• High Court (Administrative Court) — The appeal by way of case stated from the High Wycombe Youth Court conviction was dismissed. The court declined to consider evidence outside the stated case.
• High Wycombe Youth Court — The claimant was convicted on 8 April 2008 of causing criminal damage to a motor vehicle.