O'Connor & Anor, R (on the application of) v Crown Prosecution Service & Anor

The common-law principle of open justice gives the public a legal right to attend public court hearings and to enter the court building for that purpose. Court staff cannot rely on ordinary occupier’s rights to impose additional conditions of entry. Security exclusions must fall within the statutory powers in Courts Act 2003, including the requirement of reasonable necessity. Where access is disputed, the court must decide the issue, particularly when a group is to be excluded in advance. The question whether a hearing remains open is one of fact and degree. Unlawful exclusion deprives a hearing of its public character where its nature and extent mean that justice cannot be seen to be done.

The claim arose from the adjournment of a criminal trial at Aldershot Magistrates’ Court. HMCTS staff had refused entry to members of the public associated, or thought to be associated, with the defendant’s campaign group. The magistrates upheld the exclusion on the basis that admission was an administrative matter for court managers, and then adjourned the trial after the defendant sought judicial review.

The claimants challenged both the lawfulness of the exclusion and the consequence for the public character of the hearing. The central questions were whether HMCTS staff and the magistrates could lawfully restrict entry, and whether the resulting exclusion meant that no valid public hearing had taken place.

1. Exclusion unlawful. The common-law principle of open justice, reinforced for magistrates’ courts by section 121(4) of the Magistrates’ Courts Act 1980, gives members of the public a right to attend a criminal trial and, necessarily, to enter the court building for that purpose. That right does not depend on permission from HMCTS as occupier.
2. That right is subject to the court’s inherent power to control its proceedings and to the statutory powers of court security officers under section 53 of the Courts Act 2003. Section 53 does not create a parallel discretionary power to exclude persons for breach of an HMCTS condition of entry. The relevant question was whether exclusion was reasonably necessary for a purpose in section 53(3).
3. The reasonable-necessity requirement contains a subjective element, in that the officer must believe exclusion necessary, but the ultimate test is objective. The courts are the final arbiters. Where a person seeks to attend a particular hearing and there is room for dispute, the question must be decided by the court at the time, rather than left to post-event proceedings.
4. The magistrates acted on an incorrect legal basis by treating the issue as administrative. They made no factual inquiry and their decision was unsupported by evidence. Fairness also required at least one representative of the group to have an opportunity to make representations before a group exclusion was confirmed. On the evidence, exclusion was not reasonably necessary.
5. The question whether a hearing remains open to the public is one of fact and degree. The essential inquiry is whether the nature and extent of an unlawful exclusion deprive the hearing of its open and public character. The presence of a journalist is relevant but not decisive. Here, the exclusion had that effect, although the adjournment before the trial began meant that no quashing order was necessary.
6. The court made declarations that the exclusion was unlawful and that, in consequence, no valid proceedings in the trial took place on that day.

This was a first-instance judicial review claim in the Divisional Court. The court granted declaratory relief.