81 / 462
g a z e t t e
april
1991
PROBLEMS OF SEEING JUDGE
IN HIS ROOM
In the case of
Regina -v- Pitman,
the Court of Appeal (England and
Wales) (Lord Lane, Lord Chief
Justice, Aliott and Auld JJ),
The
Times
(Law Report) October 31,
1990 stated that many difficulties
arose from visits by counsel and
solicitors to a judge in his private
room, which resulted in a steady
flow of appeals.
The Lord Chief Justice said that
the appellant had withdrawn a plea
of not guilty to a charge of causing
death by reckless driving and
pleaded guilty. This had occurred
after counsel had seen the judge in
his private room. The Lord Chief
Justice stated that there was a
flow of appeals to the Court of
Appeal arising from visits by
counsel to the judge in his private
room that no amount of criticism,
no number of warnings and no
amount of exhortation seemed to
be able to prevent.
In order to draw to the attention
of courts the point which the Court
of Appeal hoped might at last go
home, the Lord Chief Justice
" . . . there wes e flow of
eppeels . . . arising from visits
by counsel to the judge in his
private room that no amount of
criticism, no amount of warnings
and no amount of exhortation
seemed to be able to prevent."
thought it necessary to cite at
length a portion of the judgment of
the court given by Mustill LJ in
R
-v- Harper Taylor: R-v- Bakker, The
Times,
(March 3, 1988).
" A first principle of criminal
law was that justice was done in
public, for all to see and hear. By
that standard a meeting in the
judge's room was anomalous;
the essence and, indeed, the
purpose being that neither the
defendant nor the jury nor the
public were there to hear what
was going on. Undeniably, there
were circumstances where the
public had to be excluded.
Equally, the jury could not
a lways be kept in cou rt
throughout.
The withdrawal of the pro-
ceedings into private, without
even the defendant being there,
was another matter. True, as the
court had stated in
R -v- Turner
(Frank)
([1970] 2 QB 321, 326),
there had to be freedom of
access between counsel and the
judge when there were matters
calling for communications or
discussions of such a nature that
counsel cou ld no t, in t he
interests of his client, mention
them in open court.
Criminal trials were so various
that a list of situations where an
approach to a judge was per-
missible would only mislead; but
it had to be clear that communi-
cations should never take place
unless there was no alternative.
Apart from the question of
principle, seeing the judge in
private created risks of more
than one kind. The need to solve
an immediate practical problem
might combine with the more
relaxed atmosphere of the
private room to blur the formal
outlines of the trial.
Again, if the object of with-
drawing the case from open
court was to maintain a con-
fidence, as it plainly had to be,
there was room for misunder-
standing about how far the
confidence was to extend; and,
in particular, there was a risk
that counsel and solicitors for
the parties might hear some-
thing said to the judge which
they would rather not hear,
putting them into a state of
conflict between their duties to
their clients and their obligations
to maintain the confidentiality of
the private room.
The absence of the defendant
was also a potential source of
trouble. He had to learn what the
judge had said at second hand,
and might afterwards complain
(rightly or not) that he was not
given an accurate account.
Equally, he could not hear what
his counsel had said to the judge
and hence could not intervene to
correct a misstatement or an ex-
cess of authority; a factor which
might not only be a source of
unfairness to the defendant but
which might also deprive the pro-
secution of the opportunity to
contend that admissions made in
open court in the presence of the
client and not repudiated by him
might be taken to have been
made with his authoritity."
The Lord Chief Justice said that
the instant case was a prime
example of the sort of difficulties
wh i ch arose when those in-
junctions were disregarded.
Both counsel were told by the
court clerk that the judge wished
to see them in his room. Neither
counsel had requested to see the
judge in chambers before the start
of the hearing. No shorthand writer
was present and no recording
device was present inside his
room.
The Lord Chief Justice said that
counsel, of course, had no option
but to see the judge at his request.
The only small criticism that could
perhaps be made of counsel was
that they could have suggested to
the judge that a shorthand writer or
some other recording device might
perhaps be obtained.
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