Right to have an assistant sitting with you. These notes explain what “McKenzie friends” are and what is their legal basis. They should not normally be needed, but may be worth taking to court if you are representing yourself and plan to use a McKenzie friend, in case your right to have one is challenged by the court.
If you are a defendant and are representing yourself in court (i.e. you are not using a solicitor to represent you), you are entitled to have someone sit next to you. She can take notes, offer advice (in whispers) and prompt you to ask particular questions etc, but cannot address the court directly. She is usually called a “McKenzie friend.”
Many people don’t use McKenzie friends, and they are not meant to be a substitute for a solicitor. They are really just a fancy name for an assistant or friend to sit with you.[note] But a McKenzie friend is very useful if you have not been in court before and need that bit of extra confidence or help. Also, even if you are confident about your defence, the McKenzie friend can help by taking notes, freeing you to concentrate on your own case.
In order to use a McKenzie friend, you simply tell the clerk at the start of the trial (when you are asked to sit in the dock or at the front of the courtroom, separate from the rest of the public or your supporters), that you are not represented by a solicitor, and would like to have an assistant to help you with taking notes and occasional advice. It should be as straightforward as that — in particular, there is normally no need to mention the term “McKenzie friend” or to justify your desire to have an assistant by complicated legal argument. (See also the end of this briefing.)
The right to have McKenzie friends is now well established, in England at least, and you should not be prevented from having one. However, it is still possible that a court may try to refuse to allow you to have a McKenzie friend sit with you, in which case you will have to be prepared to argue why you should be allowed one. The rest of these notes may be useful for this.
McKenzie friends have no official legal status: they have no particular right to sit next to you in court, and the name is not an official one. But you, as a defendant, have a right to whatever assistance may be reasonably required, and that’s the basis for allowing the McKenzie friend. The name comes from the particular case which established this right (see below).
Two cases are involved. The first is McKenzie v McKenzie, 1970, which was a divorce case, in which the court of appeal ruled that the husband (who did not have legal aid and was representing himself) should have been allowed to have someone sit next to him to give him advice and take notes etc. The second case is R v Leicester City Justices et al, ex parte Barrow et al, 1991, which was a poll tax case, in which the defendants had wanted a friend to sit with them and help them in the same sort of way.
If you need to argue your rights for a McKenzie friend, you need to know not just the titles of these two cases (as above, in italics), but also the reference to their reports in the law journals. McKenzie v McKenzie is [1970] 3 W.L.R. 472, which you would read out in court as “year 1970, volume 3, Weekly Law Reports, page 472.” R v Leicester City Justices is [1991] 3 W.L.R. 368, which you read out as “year 1991, volume 3, Weekly Law Reports, page 368.”
The McKenzie v McKenzie case
This was a divorce case. The husband had been initially legally aided, but by the time the case came to trial, he was no longer on legal aid, and had therefore decided to represent himself. At the start of the trial, a young Australian barrister (Mr Hanger) had wanted to assist Mr McKenzie for free.[note] The judge then said that the barrister could take no part in the proceedings, so he left the court and did not reappear.
The court of appeal ruled that the judge got it wrong, because “Mr Hanger was not there to take part in the proceedings in any sort of way. He was merely there to prompt and to make suggestions to the husband. . . ” (Lord Justice Davies, at page 474G). The point was frequently made in the judgment that it was a very long and complex case, and that much of the evidence was barely audible, with various language and communication difficulties involved.
The conclusion of all three judges in the appeal court was that Mr Hanger (the McKenzie friend) should have been allowed to remain, to “sit quietly beside the husband and give him from time to time some quiet advice or prompting” (Lord Justice Sachs, at page 477H). The judgment also quotes (approvingly) the comment made in an earlier case, Collier v Hicks, 1831:[note]
Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice. (Lord Tenterden CJ, in Collier v Hicks, page 669)
The R v Leicester City Justices case
This was a case about non-payment of poll tax.[note] Leicester City Council had taken Mr and Mrs Barrow to court for non-payment, and wanted to get a ‘liability order’ against them.[note] When their case came to court (Leicester City magistrates’ court), the Barrows wanted to have the help of Robert John, to act as a McKenzie friend. The magistrates ruled that, because it was a straightforward case, they did not require a McKenzie friend, and they would not be allowed one. This decision was upheld on appeal to the Divisional Court, but overturned by the Court of Appeal. This is the judgment of the Court of Appeal.
The magistrates had believed, on the advice of their clerk,[note] that they had discretion about whether to allow a McKenzie friend. Because of disruption of the court earlier in the day (as part of the anti-poll tax campaigning), they had cleared the public gallery, so that only the Barrows, a solicitor acting for the Barrows (Ms Jones), the prosecution and official members of the press were allowed in the court. Ms Jones only stayed in court to ask that Robert John be allowed in to help the Barrows with their case, and she referred the magistrates to the McKenzie v McKenzie case. But they turned her down, at which she withdrew from the case (she was not representing the Barrows for the rest of the hearing), and the council got their liability order against the Barrows.
The Court of Appeal ruled against the magistrates, and basically established a right to have a McKenzie friend, unless the need to maintain order and do justice dictates otherwise. Here are some relevant quotations from the judgment:
[The applicants] have a right to be heard in their own defence. Fairness, which is fundamental to all court proceedings, dictates that they shall be given all reasonable facilities for exercisting this right and, in case of doubt, they should be given the benefit of that doubt for courts must not only act fairly, but be seen to act fairly. (Lord Donaldson of Lymington MR, at page 376A)
A party to proceedings has a right to present his own case and in so doing to arm himself with such assistance as he thinks appropriate, subject to the right of the court to intervene. (Lord Donaldson, page 379A)
In my opinion there are in general no grounds for objecting to a litigant in person being accompanied by an assistant, who will sit beside him, take notes and advise sotto voce on the conduct of his case. (Staughton LJ, page 380E–F)
The last quote above is followed by comments on situations in which an assistant could properly be refused: if security demanded it (in certain criminal cases), or if the McKenzie friend is disorderly or is disrupting the court.
Call her an “assistant,” not a “McKenzie friend.”
The R v Leicester City Justices judgment also disapproves of the term “McKenzie friend,” for the good reason that it suggests some special legal status. The point is repeatedly made that the assistant is merely there to help the defendant, and has no special legal status. Equally, there is normally no reason to refuse to allow her to be there, or even to formally apply to the court for their permission to allow her:
The title “McKenzie friend” suggests a status and a mystique which are not justified. In my view it would be better not used in the future, and that the person should be referred to simply as an assistant or a friend. I also consider that there should be no need, in the ordinary way, for an application to be made to the court for a litigant in person to have an assistant. It should be sufficient for the litigant (or his opponent) merely to introduce the person by name, and say that he is present as an assistant. (Staughton LJ, page 381H–382A)
© Copyright 2001, Andrew Gray
What, “copyright”! Isn’t copyright evil? [ You better read these notes]
This briefing was written by me (with or without help from others) for Trident Ploughshares, but may be used freely and copied/distributed by others. In order to guarantee this freedom, the briefing is copyrighted and licensed under the GNU Free Documentation License (formal license statement follows).
Permission is granted to copy, distribute and/or modify this document under the terms of the GNU Free Documentation License, Version 1.1 or any later version published by the Free Software Foundation; with no Invariant Sections, no Front-Cover Texts and no Back-Cover Texts. A copy of the license is included in the section entitled “GNU Free Documentation License.”
I am not a lawyer. The briefing is not guaranteed in any way, and is not a substitute for proper legal advice. Feedback and corrections are very welcome, phone 0845 4588 368, email andrew@andrewgray.uklinux.net.
Andrew Gray, TP legal support (England & Wales)
This briefing was last revised: 11/12/2001
(See the changelog and authorship page for revision details.)