The Gazette 1991

april

1991

g a z e t t e

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.

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

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

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