O'Connor v Aldershot Magistrates' Court

Permission to apply for judicial review should be granted where arguable issues arise concerning the exclusion of prospective members of the public from a magistrates’ court before any disruption has occurred.

Although courts possess jurisdiction to exclude disruptive persons, the exercise of that power may require judicial assessment rather than automatic reliance on a security manager’s decision. The issues may include the interaction between court security, public access, open justice and the judicial responsibility for controlling access to proceedings. The court may also consider whether affected persons had a fair opportunity to challenge the proposed exclusion.

Mr O’Connor was facing trial for a public order offence at Aldershot Magistrates’ Court. The magistrates upheld a security manager’s decision to exclude persons believed to be his supporters, although no disruption had occurred. Mr O’Connor, his McKenzie Friend and witnesses were permitted to attend.

He contended that the exclusion contravened open justice, the statutory requirement for an open trial and Article 6 of the Convention. A single judge had refused permission to appeal. The Divisional Court considered whether the proposed judicial review raised arguable issues, including whether the magistrates had properly exercised their own judicial responsibilities and whether the adjourned trial resolved the practical problem.

1. Permission granted. The court held that the proposed judicial review raised arguable issues and might have implications for other cases.
2. Criminal courts commonly exclude persons who are disruptive. A different question arises where persons are excluded before any disruption has occurred. The court recognised that courts may have jurisdiction to act in such circumstances, but the procedure for doing so was properly arguable.
3. The central issue was whether the magistrates had subordinated their judicial responsibilities to the security manager’s decision. It was arguable that they had acted on the manager’s say-so without judicially appraising the material available to him and without giving Mr O’Connor an opportunity to challenge the proposed exclusion, including where he did not know the evidence relied upon.
4. The court identified wider questions concerning the respective roles of magistrates, HMCTS security personnel and the public. These included who should decide access to court buildings and what practical steps should be taken where a person had not been disruptive but was feared to become disruptive.
5. The adjournment of the trial did not remove the issue. The possibility that the same problem could arise at the resumed hearing was realistic.

The court directed that a second claimant could be joined, HMCTS was to remain an interested party, relevant witness statements and the magistrates’ approved reasons were to be lodged, and the matter was to be listed for a substantive hearing. Costs were to be in the case.

• Single judge: Permission to appeal was refused, on the view that the adjournment meant that a fair trial had not yet been denied.
• High Court (Administrative Court): The Divisional Court granted permission to apply for judicial review, holding that the issues were arguable and directing further procedural steps.