Justice must not only be done, but must also be seen to be done

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.

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