The facts of this case are interesting. Mr. McCarthy was driving a motorcycle and collided with another motorcycle that had a side-car which was driven by Mr. Whitworth whose wife was in the side-car. Both husband and wife sustained injuries in the collision and the police instituted criminal action against McCarthy. Whitworth also engaged a firm of solicitors, M/s. Langham, Son and Douglas to proceed against McCarthy for damages.
The criminal proceedings were taken up for hearing before a bench of judges in Sussex. The clerk to the justices, Mr. Langham, was also a partner of the law firm that was engaged to sue McCarthy for damages. As Mr. Langham was on a holiday, his younger brother acted as a deputy clerk on the day of the hearing. Incidentally, the younger brother was also a partner in this law firm.
After the hearing was over, the justices retired to their chamber to consider their decision and the deputy clerk also retired with them. After some time, the justices returned to court and declared McCarthy guilty, convicted him and imposed fine of just 10 GBP with costs.
McCarthy appealed against this decision and one of the grounds was that it was improper for the deputy clerk to have retired with the justices before they delivered their verdict. He contended that he was a partner of the very law firm which was engaged to sue him for damages on the civil side and therefore, it was improper for such a partner to also retire with the justices.
The King’s Bench, presided over by Lord Hewart, issued notice and the justices of the lower court of Sussex filed an affidavit stating that although the brother, who had acted as a deputy clerk, had retired with them, he had scrupulously abstained from any discussion on this case and they had arrived at their decision unbiased by the fact that the deputy clerk was a member of the law firm which was engaged to sue Mr McCarthy for damages.
Before the King’s Bench, the counsel for the Sussex Justices also argued that the deputy clerk merely retired with the judges to their chambers but he did not take any part in their deliberations. Therefore, his presence would not invalidate the conviction and, at best, was an irregularity.
What followed was a judgement that contained a historic sentence that has been often repeated for almost a hundred years. Lord Hewart delivered his judgement on November 9, 1923. After setting out the facts, he held that that he fully accepted the statements contained in the affidavit of the Sussex justices. He also accepted that the presence of the deputy clerk did not influence their decisions and that he did not participate in their deliberations. He also assumed and accepted that the deputy clerk had scrupulously abstained from referring to the civil case which the law firm had been engaged to pursue the claim for damages against McCarthy.
Despite accepting these facts and also the fact that the conviction was not influenced by the presence of the deputy clerk, Lord Hewart quashed the conviction by observing :
” It is not merely of some importance, but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done ”.
He went on to observe that the question was not whether the presence of the deputy clerk had influenced the decision or whether his firm, being involved in the civil case, had any role to play in the conviction. Lord Hewart went on to observe that what was important was not what was actually done, but what might appear to have been done and held :
“Nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice.”