DISMISSAL OF MAGISTRATE (Hansard, 16 May 1949)

§ Mr. Hopkin Morris (Carmarthen)
I am very sorry to delay the House at this hour, but the matter to which I wish to draw attention is one of considerable public importance. The facts are these. On 19th February of this year a man was prosecuted in the town of Llandilo, in Carmarthenshire, for an offence against the Motor Spirit Regulation Act, 1948. The offence was committed on 22nd November, 1948, three months earlier than the date of the hearing. The defendant carried on business as a haulage contractor to British Railways, and as such was entitled to have a petrol pump on his premises in order to provide for commercial vehicles.
This man had served in the First World War, was in numerous actions, and was severely wounded and badly gassed. He had undergone a number of operations since that time, one as recently as January, 1948. As a result of that operation, he 221 was unable to walk any great distance. He lived two miles outside the town of Llandilo and he wanted to use his car in order to go to that town to obtain petrol. Having run out of ordinary petrol for his car and being unable to walk the distance, he transferred a small amount—a quart—of commercial petrol into his car in order to take him to Llandilo. That is the offence which occurred on 22nd November, 1948, and the facts were put before the magistrates. He pleaded guilty from the start. The bench felt unanimously that the automatic penalties provided by the statute—the disqualification period of twelve months—were in these circumstances very much too severe. That was the unanimous decision of the bench.
The chairman of the bench, Colonel Delmé Davies Evans, a magistrate of 36 years' experience, and of 20 years' experience as chairman of that bench, has, I may say, services as distinguished as they were long. The bench was not responsible for the words he used, but only for the view. He expressed the decision of the bench thus: We think. he said, addressing the defendant, that the way this Act is worded, saying that your car has to be out of action for 12 months, is a regular scandal. We do not call it British; we call it a very evilly worded Act, but we must fine you something". A fine of one shilling was imposed, and the automatic disqualification was applied; the analyst's fee was disallowed. That fee, in my view, was quite properly disallowed because the man had pleaded guilty from the start. He had admitted the offence on 22nd November, three months before the hearing had taken place. The case attracted very wide publicity in the newspapers and as a result of that publicity, on 21st February—that is, two days later—the Lord Chancellor's Department wrote a letter to the colonel asking whether the report in the newspapers of what he said during the hearing was substantially correct He replied that the report was substantially correct. Upon that his name was removed from the Commission of the Peace.
Now, it might be argued that the words the colonel used were certainly more soldierly than judicial, and were not words which should have been used by the chairman of the bench; that they might indicate that a magistrate had no 222 intention of carrying out the law and that he placed himself above the law. If that were the case, clearly he would be unfit to remain on the bench and ought to be removed. I am not here to justify the words, but I am here also to point out that, although he used these words to condemn the Act itself and the wording of the Act, he administered the Act faithfully. He carried out the provisions of the Act and a fine and a disqualification were imposed.
If one is to look at his state of mind, one looks not only at his choice of words but at what he did. The House may contrast that with another case in a neighbouring county. It was a similar case—I am not fully aware of the facts—where the bench, despite the evidence, improperly dismissed the case. Upon a case being stated and a hearing by the Lord Chief Justice, he described that bench as a contumacious bench and the case was remitted for conviction. But they said nothing—they did the wrong thing, but said nothing. As far as I know, they have not been removed from the Commission of the Peace.

§ Mr. Leslie Hale (Oldham)
When was that?

§ Mr. Hopkin Morris
Quite recently. But here the man who did the right thing but said possibly the wrong thing—I am not justifying the language used—has been removed from the Commission of the Peace. About the words themselves, although I do not justify the words in the form in which they were used, when Parliament provides for these absolute penalties, allowing no discretion to benches to deal with special cases such as this case, which did not merit these very severe penalties, it does become a matter upon which a bench is entitled to comment in proper terms. They are entitled to draw the attention of Parliament to it.

§ Mr. Hale
I do recollect a case some years ago when a court, after a stated case, was described by the Court of Criminal Appeal as "contumacious" and was ordered to pay personally the costs of the appeal. That was an appeal from the Market Bosworth magistrates. It seems to me that, when the hon. and learned Member says the magistrate administered the Act faithfully, all he did was to do the very minimum he had to do. All that was done here was to pro- 223 tect the court against the possibility of an appeal and of such an order, but to take every other step to bring the law into contempt.

§ Mr. Hopkin Morris
With great respect, that is not what he did. He was drawing attention to the penalties which, in the special circumstances of this case, were far too severe. He may have stated that point in language not sufficiently restrained, but he carried out the law, and carried it out faithfully. In these circumstances, this is a matter of considerable public importance. It is important not only to the magistrate concerned, but I understand that the Magistrates' Association is very much concerned about it. It is a matter of great public importance that a bench should possess independence.

§ The Attorney-General (Sir Hartley Shawcross)
I agree with the hon. and learned Gentleman that this is a matter of importance. Perhaps I might, at the outset, make one or two observations of a general kind on the circumstances before I refer to the particular facts of the case which the hon. and learned Gentleman has brought to our notice. There are, I venture to think, three freedoms in our constitutional practice which it is absolutely vital to maintain. Only one concerns this matter. These freedoms are the freedom of the two Houses of Parliament from control by the Executive: the freedom of the judiciary, and in this I include holders of magistracies as well as holders of higher office, from interference or control by the executive or Parliament: and the freedom of the Press from control by executive, by Parliament or, except in these two laws, by the judiciary.
In a constitution such as ours, it would be exceedingly easy to get a collision between one or other of the three great institutions of a democratic society. The reason why these collisions do not occur is that there is in our unwritten and flexible constitution a mutual recognition of the existence of these various freedoms as being necessary to our constitutional system and a clear understanding on the part of all concerned of the sphere in which each freedom operates. It is abundantly clear that the freedom of Parliament and the freedom of the judiciary 224 within their respective spheres depend on a certain degree of mutuality. If those who hold judicial office were to take upon themselves in that capacity to criticise Parliament and the merits of Parliamentary Measures, or to allow their administration of statute law to be affected by political considerations about what they thought of a particular statute, then Parliament would obviously be tempted to encroach on the freedom enjoyed by the now independent judiciary. That kind of encroachment or collision does not happen in our constitution because, as a general rule, those holding judicial office know it is their duty to apply and administer the law as it stands, and not to try to alter it or criticise it when Parliament has made it, except to call attention to faulty draftsmanship.

§ Mr. Blackburn (Birmingham, King's Norton)
Would the right hon. and learned Gentleman describe as within that formula what Mr. Justice Harman said last Thursday—that the National Health Service Act was a miracle of ineptitude?

§ The Attorney-General
Mr. Justice Harman was criticising the drafting of the National Health Service Act. He was saying, as I understand it, having read his judgment in the newspapers, that the Act did not achieve the purpose Parliament intended. He was not criticising the policy or the merits, but the drafting of the Act. The language which the learned judge used to make his criticism was a matter for the learned judge to select. There are numerous authorities for the general principle that judges or justices, or any persons exercising judicial office, must not question the policy of Parliament or criticise the Statutes it passes on their merits. Sir John Marriot said: An English court may hold the opinion that in enacting a particular measure the legislature acted with conspicuous folly, but any such opinion they must keep to themselves. It is no part of their duty to express it, still less to act upon it. These are the general principles which ought to govern the action of those holding judicial office of that kind.
What, then, did Colonel Delmé Davies Evans do? He was sitting, as has been said, as the chairman of the bench of justices which had before it a motorist who had pleaded guilty to what is usually 225 regarded as a black market offence under the Motor Spirit Regulation Act, 1948. He said, according to the newspapers—he agreed that he was accurately reported— We think the way this Act is worded is a regular scandal. We do not call it British. We call it a very evilly-worded Act. We must fine you something. He announced a fine of 1s. He disallowed the advocate's fee and the analyst's fee, both of which were necessary to the proper prosecution of the offence. It would have been quite impossible, and in my view quite wrong, for the police to have acted on an admission which the motorist made at the time which he might very well have denied making later on. They were bound to have an analyst and an advocate in order, if the case came to be contested before the justices, to be able to prove the case. The hon. and learned Member for Carmarthen (Mr. Hopkin Morris) will, I am sure, be the first to agree with me that if they had not been prepared to prove the case when it came before the justices, they would have been the first people to be criticised by Colonel Davies Evans.
Colonel Davies Evans, it seemed to the Lord Chancellor, consequently made it quite clear, while he was sitting on the bench and adjudicating as chairman of the justices, not only that he disapproved in the strongest possible terms of the policy of the Measure which had recently been passed by Parliament, but that he did not intend to enforce it. The fine of a derisory amount of 1s. was not expressed at all as being imposed on account of any special mitigating features such as the hon. and learned Gentleman referred to, and the refusal to allow costs or the advocate's fee seemed to my noble Friend to indicate that Colonel Davies Evans was claiming a freedom not to enforce enactments the policy of which he disliked. My noble Friend acted on what was said and done by Colonel Davies Evans in court, but out of court Colonel Davies Evans went even further. According to the newspapers—and he has never sought to deny that he was accurately reported in these matters——

§ Mr. Hopkin Morris
He makes no admission that the report is accurate.

§ The Attorney-General
On the other hand, he has never made any denial that it is accurate——

§ Mr. Blackburn
How does my right hon. and learned Friend know?

§ The Attorney-General
The hon. Member can take it from me that there has been considerable correspondence between Colonel Davies Evans and my noble Friend on this matter and that he has never made any denial that he was correctly reported when he was said to have told a reporter: It is a most disgraceful Act. If a man is caught with red petrol, punish him, but do not immobilise his car with the possibility of further unknown penalties. Under the Act, if a man whose car is immobilised tries to sell it, the Government is entitled to half the selling price. I think it is perfectly disgraceful. If we are going to get legislation of that sort, I am not going to play. Whether he said that or not after the court proceedings does not perhaps matter very much, because he had made it sufficiently evident by what he said in court and by the action which he took in court, not only in imposing a derisory fine but in refusing proper costs to the prosecuting authority, that he was not going to play.

§ Mr. Hopkin Morris
As to the derisory element in the fine, he did not express his view about the determination of the fine because of the special circumstances which I outlined.

§ The Attorney-General
If that is so, it is a little unfortunate that Colonel Davies Evans, when imposing the fine, did not use language to make that clear. The language he used, and admitted using, was: We call it disgraceful. We must fine you something. We will fine you 1s. That is what he said.
From time immemorial it has been the duty of the Lord Chancellor, in the name of the Crown, to appoint and dismiss justices. They hold office during pleasure and it is his responsibility to dismiss them in an appropriate case. In practice, he never does dismiss justices except in a case of inability or misbehaviour, to use the words which Parliament used as recently as 1934 in defining a similar power which the Lord Chancellor has in regard to the dismissal of county court judges. I take it that the word "inability" requires no explanation. Cases of misbehaviour usually relate to misbehaviour out of court—disgraceful behaviour of 227 one kind or another—and, of course, they are very infrequent.
My noble Friend would never dream of dismissing a justice simply because he made an honest mistake in a particular case or because he had exercised a discretion in a wrong or foolish way. There are many cases in which justices may decide quite properly, in the exercise of their discretion, that because of mitigating circumstances only a nominal penalty should be imposed or, indeed, that there should be no penalty apart from the automatic penalty which may follow from the conviction; and where they decide on the merits of the case, because of mitigating circumstances, my noble Friend would never dream of substituting his discretion for the discretion of the justices, nor would he dismiss a justice merely because of some isolated and temperate criticism of the policy of an Act of Parliament.
But this is not such a case. If the Lord Chancellor is satisfied, as he was here—and it must be for the Lord Chancellor alone to judge—that a justice has allowed his dislike of the policy of an Act of Parliament to influence his judicial administration of that Act, then my noble Friend is bound to regard the matter as one of great seriousness, going to the whole root of the functions of justices, and to dismiss him. Justices are not controlled by the Executive and they will not be controlled or fettered in any way in their administration of the law. They will, I am sure, be the first to realise that a condition of their own freedom in the administration of the law is that they do not encroach on the responsibilities of Parliament for making the law. Criticism of the policy of Parliament is a matter for politicians, for the public and for the Press, but for those who accept the responsibility of discharging judicial functions to use the bench as a platform for criticism of that kind would very quickly destroy the reputation for impartiality which the bench in this country enjoys and might very easily lead them, as Colonel Davies Evans in fact led himself, into departing from their duty of administering justice according to the law. In those circumstances, my noble Friend felt he was compelled to take the action that he took.

§ Mr. Blackburn (Birmingham, King's Norton)
I feel that the right hon. and learned Attorney-General has dealt with this matter this evening in a reasonable spirit, but I think he ought to know that there are many people who will look upon a matter of this kind with anxiety because it is, of course, the fact that this Act of Parliament is evilly worded indeed. It is about the only Act of Parliament on our statute under which the benefit of the doubt goes to the prosecution and not to the accused, and that was admitted by the Attorney-General during the passage of this Act in the House. Unfortunately for Colonel Evans, he was not referring to that when he made the remarks, and I am bound to say I agree with the hon. and learned Member for Carmarthen (Mr. Hopkin Morris) that I do not think the remarks were in any way justified. I do not think for one moment, however, that in referring to these remarks the Attorney-General has made out his case this evening. He said the words were a criticism of the policy of the Act. But the words, which he read out, were as follows: We think that the way this Act is worded is a regular scandal. To refer to the way the Act is worded is not to refer to the policy of the Act. The Attorney-General knew perfectly well that he had a bad case as far as the words used by the learned justice were concerned, and that is why he produced these remarks which are completely and utterly indefensible.

§ The Attorney-General
The hon. Member has misquoted. He was not referring to any question of drafting. It was clear, and ought to be clear to the hon. Member if he reads what the learned justice said, that he was referring to the policy of the Act in automatically disqualifying the car—"We think the way this Act is worded—it says your car has to be out of action for 12 months—is a regular scandal."

§ Mr. Blackburn
The policy of the Act was designed to prevent the black market in petrol. It is grossly unfair to Colonel Davies Evans to say he was against the policy of the Act. I took the view at the time that it is wrong to put down an absolute and automatic suspension for 12 months whatever may happen, having regard to the fact that there may be an 229 innocent explanation. In view of the subsequent remarks which the magistrate made, I feel that the Lord Chancellor may be right in his decision, and I am not quarrelling about the merits of the decision. I hope this House will always be anxious to see that members of the judiciary are not dismissed by the Executive without the greatest possible pains to discover that the dismissal was necessary and justified.

§ Mr. Maude (Exeter)
The matter that has been raised by the hon. and learned Gentleman is a matter of concern, and I listened anxiously to what the right hon. and learned Gentleman said in reply. I cannot help saying that I think it is unfortunate that the hon. Member for King's Norton (Mr. Blackburn) allowed a suggestion to arise, as it may appear in the Press tomorrow, as though there really was some justification for this magistrate's remarks, which were quite sufficient to cause the Lord Chancellor to make inquiry. It was not a question of how to deal with the Act, which was bad enough in itself, but it was very bad, in my view, to impose a derisory penalty.

§ Mr. Blackburn
rose—

§ Mr. Maude
Obviously a penalty of 1s. was derisory. It is fantastic to say it was not. I understand that the magistrate was given an opportunity to deny what was said in the Press, and that he said, as I took it down from the right hon. Gentleman's reply, "I am not going to play," which seems to me outrageous. He had no right to say anything of the sort. In these circumstances, what is to be done about a magistrate who behaves in this way? It seems to me that the great glory of the Bench, however little the light shines sometimes, and however brightly in other quarters, the real glory of it is that it does in fact loyally back up the decisions of Parliament. In that I am sure the hon. and learned Member for Carmarthen shares with other hon. Members the feeling that justice was done.