Ezeugo, R (on the application of) v Hendon Magistrates' Court

Judicial review is not a substitute for an appeal on factual issues arising in criminal proceedings. Findings made by a magistrates’ court after hearing live evidence will rarely be set aside as errors of law. A judge may ask additional questions, particularly where a party is unrepresented, and the test for apparent bias is whether a fair-minded and informed observer would conclude that there was a real possibility of bias. A defendant should be excluded from a trial only with great caution, especially when unrepresented, but persistent disruption may ultimately justify exclusion. The court must balance fairness to the defence, fairness to the prosecution and the wider interests of justice.

The claimant sought judicial review of decisions made during his summary trial for common assault. He challenged the refusal to stay the proceedings for abuse of process, the refusal of the deputy district judge to recuse herself for alleged bias, and his exclusion from the courtroom after repeated interruptions and objections.

The challenge concerned alleged deficiencies in disclosure and investigation of CCTV evidence, the judge’s questioning of a police witness, and the continuation of the trial in the claimant’s absence. The claimant had also appealed to the Crown Court, where the appeal was adjourned pending the judicial review.

1. Abuse of process and factual findings. The deputy district judge heard live evidence from the investigating officer and oral submissions from the claimant. Her findings that the CCTV had not been tampered with, that reasonable steps had been taken to obtain relevant footage, and that the claimant could receive a fair trial were open to her. Earlier views expressed by other judges, without the benefit of that evidence, neither bound her nor established an error of law. The challenge to the refusal to stay the proceedings therefore failed.
2. Recusal and apparent bias. The deputy district judge correctly applied the test whether, having regard to all relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility of bias. A judge may ask additional questions, particularly where a party is unrepresented. The questioning concerning CCTV at 8 Varley Parade was peripheral to the central issue of alleged tampering with the principal CCTV footage. It was open to the judge to conclude that the test was not satisfied.
3. Exclusion from the trial. The court should be slow to exclude a defendant and continue in his absence, particularly where the defendant is unrepresented. The relevant considerations include the nature and voluntariness of the disruption, the possibility and length of an adjournment, representation, the disadvantage caused by absence, and the public interest in a timely trial. Nevertheless, persistent disruption may reach the point where exclusion is necessary to enable the judge to conduct the proceedings. A litigant must challenge an adverse ruling through an available appeal, not by persistently interrupting the proceedings.
4. Alternative remedy and disposition. The Crown Court appeal by way of rehearing permitted reconsideration of the factual issues. The court therefore dismissed the judicial review claim. It noted that judicial review should not be used to avoid consequences ordinarily attendant on an appeal by way of case stated.

• Administrative Court: Ouseley J granted permission on one ground and refused permission on two others on 10 August 2009. Nicol J allowed some latitude in argument and dismissed the claim.
• Crown Court: The claimant had lodged an appeal by way of rehearing against the magistrates’ court proceedings. That appeal was adjourned pending the judicial review and was not determined in this judgment.