Cooper v Wrexham Magistrates Court & Anor

A magistrates’ clerk or legal adviser may advise on law, mixed law and fact, procedure and the formulation of reasons, but must not participate in the magistrates’ findings of fact or decision-making. If advice is given privately, it must be provisional, reported in open court and followed by an opportunity for the parties to make representations. A departure from those safeguards may create both an appearance of unfairness and actual unfairness. The resulting conviction may be quashed where the magistrates changed a decision reached by them after receiving impermissible private factual input.

The appellant sought judicial review of his conviction for theft by Wrexham Magistrates Court. After retiring, the magistrates told their clerk that they intended to acquit because there was no evidence that the appellant had taken the stolen property. The clerk reminded them of evidence linking the appellant to the vehicle and sweets bearing his fingerprint, expressed the view that an acquittal came close to being perverse and unreasonable, and told them that reasons would be required. The magistrates then returned to court and convicted without hearing further submissions.

The central issue was whether the clerk had improperly entered the fact-finding and decision-making process, contrary to the Practice Direction concerning justices’ clerks.

1. The application succeeded. The decision of the magistrates was quashed, together with the conditional discharge, compensation order and costs order.
2. A magistrates’ clerk must leave findings of fact and the ultimate fact-finding decision to the magistrates alone. The clerk may advise on questions of law, mixed law and fact, practice and procedure, available penalties, relevant superior-court decisions and the appropriate decision-making structure. The clerk may also assist with recalling evidence and formulating reasons, but must not participate in deciding the facts.
3. The Practice Direction issued by Lord Woolf, cited at [2000] 1 WLR 1886, required any advice given privately to be reported to the parties, treated as provisional, repeated in open court and followed by an opportunity for representations. The court stated that the direction should be closely followed.
4. The clerk’s intervention went beyond permissible assistance. His discussion of the evidence had the appearance, and probably the reality, of changing the magistrates’ decision outside open court. That deprived the process of both the appearance and reality of fairness.
5. The court noted the support provided by Lord Hoffmann’s speech in Clark v Kelly [2004] 1 AC 681, although that case concerned different statutory provisions. Compensation already paid was not ordered to be repaid immediately. Any application for repayment was to be made to the Divisional Court on notice to the victim, who was to have an opportunity to make representations. Costs already paid were to be repaid.

The judgment does not state any prior appellate decision. The court determined an application for judicial review of the magistrates’ conviction.