On 20 February 2015 Matthew O’Connor, the Claimant in this judicial review and the founder of the campaign group Fathers4Justice, was due to go on trial at Aldershot Magistrates’ Court for a public order offence. He arrived at court with around ten of his supporters, but when they tried to gain entry to the court building they were prevented from doing so by HMCTS staff. Only the Claimant and his Mackenzie Friend were allowed to enter.
HMCTS staff had taken the decision to exclude anyone who appeared to be associated with the Claimant, other than those listed as witnesses for the defence on the case management form, after they learned from police of a protest planned by his supporters to take place outside court.
As robust discussions continued outside (captured for posterity on a mobile phone video later uploaded to YouTube), the Claimant’s trial commenced and his plea was taken. The Claimant then asked the bench to admit his supporters. The bench were advised that a decision to allow entry to the court building was an administrative matter for HMCTS staff and it was not open to the court to compel entry. They were advised that the decision for them to make was whether, the Claimant’s supporters having been excluded, the trial remained capable of being held in open court. On the basis of this advice, they refused to order that the Claimant’s supporters be admitted, but granted the Claimant an adjournment so that he could judicially review this decision.
Decision of the Administrative Court
HMCTS accepted that the decision to exclude was unlawful on the narrow grounds that HMCTS policies requiring consultation with the judiciary had not been followed, but maintained that, as occupier, it retained the final say on whether entry is permitted to court buildings.
The court rejected this submission, finding that there exists an ancient common law right to attend criminal and civil hearings and this necessarily included a right to enter court buildings for that purpose. The right is qualified, not least by the court’s own jurisdiction to exclude and by the statutory provisions of s.53 of the Courts Act 2003, but no such qualification applied here.
s.53(3) sets out the three purposes for which a court security officers may exclude a person from a court building if it is reasonably necessary to do so:
“a) enabling court business to be carried on without interference or delay;
b) maintaining order;
c) securing the safety of any person in the court building”
The court found that this was a prescriptive list of the purposes for which court security officers could lawfully exclude members of the public; there could be no parallel power allowing exclusion on other grounds (such as a failure to comply with a condition of entry imposed by HMCTS as occupier). In this case, the court found that none of the criteria applied. Examples of the justification given by the HMCTS Security and Fire Safety Officer for the exclusion included his experience of a protest by Fathers4Justice some 7 years previously, and a disruptive protest by an unrelated group. This was not sufficient to justify exclusion of the Claimant’s supporters.
The court held that ultimately the decision as to whether exclusion is justified is a judicial one. In this case, HMCTS staff ought to have referred the matter to the bench, and the bench ought to have made the decision themselves rather than considering themselves bound by the decision of the court staff.
The court then considered whether, as a consequence of the unlawful exclusion of the Claimant’s supporters, his trial had not been held in open court. It was held that the unlawful exclusion of a particular person would not necessarily mean that a trial was not held in open court. The question was one of fact and degree as to whether the “nature and extent of the exclusion are such as to deprive the hearing of its open and public character”.
On the facts, the court held that the relevant hearing not been held in open court. Those excluded were not only supporters of Fathers4Justice, but other individuals involved in local politics who were interested in the Claimant’s trial. Their exclusion created not only a strong and understandable sense of grievance, but had the consequence that justice could not be seen to be done. Although a head-count should not be decisive, in this case around 90% of those who wished to attend the hearing were prevented from doing so (the only members of the public in fact in attendance were a local journalist and a solicitor involved in an unrelated matter).
The court was led through historical authorities both from this jurisdiction and the US which arguably fell short of establishing any sort of concrete right of entry to a court building to the exclusion of the rights of HMCTS as occupier. To this extent, the strongest authority relied on was Daubney v Cooper (1829) 10 B & C 237 in which the court said:
“all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose – provided they do not interrupt the proceedings, and provided there is no specific reason why they should be removed – have a right to be present for the purpose of hearing what is going on.”
Even this case (decided in the early 19th century before schemes such as those covering Occupiers’ Liability were conceived) does not rule out exclusion of the public if there are specific reasons for doing so. HMCTS had conceded that any right it claimed to exclude members of the public as occupier was subject to public law principles.
The court’s finding could result in difficult situations where a judicial office holder directs that a member of the public must be allowed to enter a court building to observe a trial against the strongly-held views of HMCTS staff who consider he or she presents an unacceptable security risk. HMCTS staff may be placed in an uncomfortable position where they must try to control a situation they feel is beyond them as well as potentially facing attendant liability as occupier of the court building should anything go wrong.
In reality, however, this problem is likely to be an academic one. Although its submission that it retained the ultimate authority to exclude members of the public from court buildings was rejected, HMCTS policies (which it accepted were not followed on this occasion) already required its staff to consult the judiciary in cases such as this. As for the unlikely, but by no means impossible, case where the views of the judiciary and HMCTS staff differ, the judgment does not provide a clear answer. It simply states that a court faced with an impasse might reasonably decide that the “best (or least bad) course [is] to adjourn the trial and leave the issue to be decided by the Divisional Court, as was done in this case”.
As for the court’s decision that the exclusion of the Claimant’s supporters meant that his trial was not begun in open court: this case, like all cases of its type, is fact-specific. It will be a question of fact and degree in each instance.
The Claimant’s trial will now be listed for a third time at which it is hoped open and fair justice can finally be seen to be done.
Chris Adamson, the author of this post, is a pupil at 1 Crown Office Row. Oliver Sanders of 1 Crown Office Row acted for the Defendant in this case.