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Magistrate was unbiased in trying same person in separate cases, says Crown

A prosecutor has said the Supreme Court should not have overturned the conviction of a woman found guilty of drug offences.

Puisne Judge Shade Subair Williams found earlier this year that there was an “appearance of bias” in the cases against Rebecca Wallington because the separate cases were both heard by the same magistrate, who had found her to be a dishonest witness.

But Alan Richards, for the Crown, argued in the Court of Appeal this week that the magistrate had clearly explained his reasoning in both cases, and it was not unusual for magistrates to hear different matters involving the same defendants.

He added: “Obviously in cases with defendants who find themselves frequently before the courts, of whom there are regrettably several, that will occur repeatedly.

“It is no discredit to recognise that this is the practical reality of criminal litigation in this jurisdiction.”

Ms Wallington, 45, of Southampton, was charged with possession of 418g of cannabis with intent to supply in November 2016 and convicted in January 2021.

She was also charged with the same offences in connection with 857g of the drug in January 2017 but convicted in November 2020.

In the 2016 case, Ms Wallington admitted possession but denied intent to supply, while she denied possession entirely in the 2017 case.

Both matters were heard by magistrate Craig Attridge.

Mrs Justice Subair Williams had found Mr Attridge should not have presided over both cases because it caused an “appearance of bias” against Wallington.

She highlighted that Mr Attridge had found that Ms Wallington had not given “honest or credible” evidence in both cases.

Mr Richards however argued that the fact Mr Attridge found that Ms Wallington’s story was “implausible” in one case did not mean he could not fairly consider her evidence in another case.

He said: “If a judge were so outspoken or unbalanced in his findings in relation to a witness, that could properly call into question his independence.

“My point is to imply in this case there is no such outspokenness or imbalance in anything the magistrate said or did.”

Mr Richards said Mr Attridge had made extensive analysis of Ms Wallington’s evidence in both cases and had considered possible defences that had not been raised by defence counsel in trial.

However he said Mrs Justice Subair Williams had seemingly focused on his conclusion that her evidence was not reliable.

Mr Richards said that while the courts use the concept of a fair-minded and informed observer to gauge potential bias, the courts must consider such “observers” to be aware of the role and function of magistrates.

Mark Pettingill, counsel for Ms Wallington, argued that the “interchanging” of the two similar but different cases with the same defendants had raised obvious concerns.

He said Mr Attridge was put in an “impossible position” and required to do “mental and judicial gymnastics” to manage the separate cases.

Mr Pettingill: “Meandering through two cases on different dates through the system and finalising them on the same day is not, to the reasonable, fair minded observer, satisfactory or fair.”

He said that one case should be dealt with before the next begins to help prevent the appearance of bias, particularly when the charges are of a similar nature.

Mr Pettingill said: “A judge should have the opportunity to examine one case and one set of facts and be done with that case.”

He argued that once Mr Attridge had formed an opinion about Ms Wallington’s honesty in one case, he would feel an obligation to stand by it in the second case.

Mr Pettingill said that counsel for Ms Wallington at trial should have made an application for Mr Attridge to recuse himself in the second case, but she should not be penalised because her lawyer did not do so.

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