Rex v Sussex Justices, Ex parte McCarthy

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The legal case Rex v Sussex Justices, Ex parte McCarthy is a leading case from 1924 in England , from which a now almost all over Europe known legal principle derived:

“Not only must Justice be done; it must also be seen to be done ”

( German : "Justice not only has to be practiced, it must also be externally recognizable that it is being practiced").

Author of the law

Gordon Hewart, 1st Viscount Hewart , then Lord Chief Justice of the King's Bench Division, is considered to be the author of this legal set . This formulation was first used in the grounds of the judgment on the Rex v Sussex Justices, Ex parte McCarthy case. In the case itself, inter alia, the impartiality and rejection of judges in a proceeding were dealt with in the sense that the mere appearance of apparent bias on the part of the judge in a proceeding can be sufficient to overturn a court decision.

Background and application of the Rex v Sussex Justices, Ex parte McCarthy case

McCarthy was involved in a traffic accident as a motorcyclist in 1923 , for which he was convicted of dangerous driving in a magistrate court . The accused and his attorney were not aware that a legal assistant to the magistrate court judge was also a member of a law firm in which a civil complaint was being brought against the defendant in the accident, which in turn had given rise to prosecution in the magistrate court. This Magistrate Court legal clerk also withdrew for deliberation with the judges who, when they returned, sentenced the accused. Upon learning of these circumstances with the judge's legal assistant at the Magistrate Court, the convict requested that the conviction be set aside. Although the judges swore oaths that the legal assistant at the Magistrate Court had not influenced them in the deliberations, the judgment was overturned, among other things with the now famous reason:

“It is said, and, no doubt, truly, that when that gentleman retired in the usual way with the justices, taking with him the notes of the evidence in case the justices might desire to consult him, the justices came to a conclusion without consulting him, and that he scrupulously abstained from referring to the case in any way. But while that is so, a long line of cases shows that 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 ”

which has been shortened over time to:

“Not only must Justice be done; it must also be seen to be done ”

The most recent case in England in this connection concerned Augusto Pinochet . In November 1998, a court ruled that Augusto Pinochet had lost his immunity . This judgment of the House of Lords was overturned by the same court due to possible bias of a judge, Lennie Hoffmann, Baron Hoffmann . This had connections to the human rights organization Amnesty International , which appeared as a joint plaintiff against Augusto Pinochet in the proceedings.

This legal principle is also used in a modified form, e.g. For example: "In a democratic system, the judiciary not only has to work efficiently, it also has to be visible and it has to demand respect from the population". or "Whoever is responsible for such genocide must be indicted, and justice must be seen to be done".

reception

This principle of law was on the jurisprudence of the European Convention on Human Rights (ECHR) by reception entrance into the legal systems of other European countries and is now regarded as a European rule of law.

Individual evidence

  1. ^ French : Non seulement la justice doit être pratiquée, il doit également être visible au monde extérieur qu'elle est pratiquée .
  2. ↑ KB 256, at 259.
  3. ^ Judgment - In Re Pinochet , Website: House of Lords, Session 1998-99, last accessed October 31, 2018.
  4. ↑ Brian Crowley , Irish politician and Member of the European Parliament , on the occasion of a debate on April 5, 2001 [1] .
  5. ↑ Bashir Khanbhai ( PPE-DE ) in a debate on November 18, 1999 [2] (attention: incorrectly reproduced in the German translation).
  6. ↑ See e.g. E.g .: DELCOURT v. BELGIUM, Application no. 2689/65; CUBBER v. BELGIUM, Application no. 9186/80; MICALLEF v. MALTA, Application No. 17056/06; MORICE v. FRANCE, Application no. 29369/10.
  7. ↑ See e.g. B. Opinion of Advocate General Yves Bot delivered on 23 February 2016 in Case C ‑ 614/14; Austrian Supreme Court decision of 03.10.2010, 12 Ns 93 / 10p or in Switzerland: BGE 112 Ia 290, E. 3b [3] .