Grounds for appeal in Westminster case

It is unlikely that any of the council members or officers surcharged at the conclusion of the Westminster 'homes for votes' inquiry will accept the penalty without challenge. And Dame Shirley Porter and her colleagues have a right of appeal against the decision of district auditor John Magill.

But in hearing appeals from a local government auditor, the court will not depart from a finding of fact based on witness evidence without good reason. And although the court does have the power to receive evidence which was not before the auditor, cases where decisions have been reversed on appeal are comparatively few.

In exercising his function of surcharge Magill has arguably been acting in a quasi-judicial capacity. He should, therefore, have conducted his enquiry along the lines of a court of law and applied the principles of natural justice.

But Magill gave a press conference in 1994 to announce provisional findings that there had been gerrymandering and improper conduct before he had heard all the evidence, so Porter would appear to have at least one ground for appeal.

No one should act in a judicial or quasi-judicial capacity if they are biased or may fairly be suspected to be. The press conference given by Magill may have given the impression that he had pre-judged matters against Porter and the others.

Newspaper reports suggest that Magill did not exactly warm to Porter. He criticised her for destroying important papers and stated there was a delay by the council in locating and handing over documents. If these allegations are correct it is surprising that no criminal charges were brought for obstructing the district auditor.

The difficulty which a district auditor has is that he is investigator, prosecutor and judge. The system is also flawed in other ways. When a councillor or officer who has been surcharged appeals, the onus is on them to satisfy the court that the auditor's decision was wrong. But it would be astounding if a defendant in an ordinary contested civil action had to show why he or she should not pay the sum claimed against him or her.