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R v Sussex Justices, ex p McCarthy

The King v. Sussex Justices. Ex parte McCarthy
Court High Court of Justice
Cases cited
  • [1924] KB 256
  • [1923] EWHC KB 1
Court membership
Judge(s) sitting Lord Hewart CJ, Lush and Sankey JJ

R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is a leading English case on the impartiality and recusal of judges. It is famous for its precedence in establishing the principle that the mere appearance of bias is sufficient to overturn a judicial decision. It also brought into common parlance the oft-quoted aphorism "Not only must Justice be done; it must also be seen to be done."

In 1923 McCarthy, a motorcyclist, was involved in a road accident which resulted in his prosecution before a magistrates court for dangerous driving. Unknown to the defendant and his solicitor, the clerk to the justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of the accident that had given rise to the prosecution. The clerk retired with the justices, who returned to convict the defendant.

On learning of the clerk's provenance, the defendant applied to have the conviction quashed. The justices swore affidavits stating that they had reached their decision to convict the defendant without consulting their clerk.

The appeal was essentially one of judicial review and was heard at the King's Bench division by Lord Chief Justice Hewart. In a landmark and far-reaching judgement, Lord Hewart CJ said:

The question therefore is not whether in this case the deputy clerk made any observation or offered any criticism which he might not properly have made or offered; the question is whether he was so related to the case in its civil aspect as to be unfit to act as clerk to the justices in the criminal matter. The answer to that question depends not upon what actually was done but upon what might appear to be done.


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