R v Sussex Justices, ex parte McCarthy

• McCarthy was convicted of dangerous driving before justices
• The clerk to the justices was a member of the firm of solicitors acting for the other party in a civil claim arising from the same accident
• The clerk retired with the justices when they considered their verdict, although he gave no advice

1. Does the reasonable apprehension of bias, arising from the clerk's presence during deliberations, vitiate the conviction even if the clerk gave no actual advice?

• Lord Hewart CJ quashed the conviction. The clerk's presence during deliberations, given his connection to the opposing civil claim, created a reasonable apprehension of bias in the mind of an informed observer. It was irrelevant that the clerk said nothing and that no actual bias was shown. The appearance of justice is as important as its substance.

It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The test is not actual bias but whether a fair-minded and informed observer would reasonably apprehend that the decision-maker might not bring an impartial mind to the decision.