Few sentences have been quoted more often than the aphorism: “Justice must not only be done, but must also be seen to be done”. This dictum was laid down by Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices,  1 KB 256.
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 :
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.”
His view was concurred with by the other two judges (Justice Lush and Justice Sankey). Justice Lush observed that even though the trial judges did not intend to do anything irregular or wrong, they placed themselves in an impossible situation by allowing the clerk to retire with them to the consultation room. As the presence of the clerk had not been waived by the solicitor for McCarthy, the conviction had to be quashed.
This landmark ruling has been the basis of several decisions in administrative and other branches of law where even the appearance of something improper has been a ground to set aside an order of a court, tribunal or quasi-judicial authority. Indeed, it was this decision that was decisive in setting aside the initial order of the House of Lords against the Chilean dictator Pinochet because Lord Hoffman was on the Bench and his wife had worked with Amnesty International which had pursued the case against Pinochet.
The main paragraph which has been reproduced above is now reduced to an aphorism and is often quoted as “justice must not only be done, but must be seen to be done”.
Lord Hewart was a remarkable English judge. He was born in not very affluent circumstances and had to initially work as a journalist before he joined the Bar in 1902, at the age of 32. But his rise in the profession was meteoric and he became King’s Counsel in just ten years (1912). Within the next four years became Solicitor General (1916) and Attorney General three years later. He was appointed as the Lord Chief Justice in 1922 and continued in office for 18 years. He resigned in October, 1940.
Apart from delivering several landmark judgements, Lord Hewart is famous for his book “The New Despotism” which was published in 1929 while he was sitting as the Lord Chief Justice of England. He was of the view that the executive was undermining the rule of law without any checks or restraint and this was being done without due sanction from the legislature. It should be remembered that England did not have a written constitution and, at that time, it was very difficult to obtain a certiorari or a mandamus against any Government authority. But this book created a sensation and lead to the appointment of the Donoughmore Committee and later the Franks Committee and eventually lead to the foundation of administrative law.
Lord Hewart passed away in 1943 but will always be remembered for this landmark ruling which remains as one of the pillars of administrative law and indeed as the basis of the principles of natural justice.
This principle is important in an era where Tribunals have been constituted to deal with several branches of law. Lord Hewart’s principle requires that Tribunals to be not only actually independent from executive interference but to be seen as being independent entities and not as departments of the Government. We cause harm to our own legal system and its credibility by ignoring this salutary principle.
The author is Arvind Datar, a Senior Counsel practicing at the Supreme Court of India.