Are more children about to give evidence in care proceedings?

Each year about 40,000 children each year give evidence in criminal proceedings; often with special measures, but the fact remains that they still give evidence. In the family court social workers, guardians, parents and indeed their advocates generally start from the perspective that children should never give evidence in court. The Court of Appeal in Re E (A Child)[2016] EWCA Civ 473 heavily criticises this practice and concludes that such a presumption is contrary both to the binding decision of the Supreme Court in Re W (Children)(Family Proceedings: Evidence)[2010] UKSC 12 and Article 6 of the European Court on Human Rights.

This issue has recently come to the fore as a result of a fact-finding hearing in care proceedings before HHJ Watson (sitting as a Deputy High Court Judge) who made a number of findings of sexual abuse against a father and his teenage son (A). The judge determined that the abuse was perpetrated against A and three other children. What the judge did not do was hear evidence from any of the children. She declined an application for the children to give evidence during the fact-finding process and determined that the issue would be kept under review during the trial. The Court of Appeal allowed the appeal against the findings and criticised the "process and procedure together with the judge's overall analysis"

So how do we change this mindset?

Well the starting point as we all know is Re W and the relevant factors as set out by Baroness Hale. These should be considered with (from paragraph 9) the Working Party of the Family Justice Guidelines on the issue of Children Giving Evidence in Family Proceedings [2012] Fam Law 79.

The Guidelines themselves set out 21 factors to which the court should have regard when determining whether a child should give oral evidence in the determination of a fair trial. The Guidelines require the court to carry out a balancing exercise ‘between the following primary considerations:

i)the possible advantages that the child will bring to the determination of truth balanced against:

ii)the possible damage to the child’s welfare from giving evidence i.e. the risk of harm to the child from giving evidence’

It is very clear that the question of children giving evidence should be determined at the earliest stage and certainly not on the eve of trial. There will be have to be an evaluation of the available evidence and whether the child’s evidence would assist the court in determining the issues. This will obviously require a full consideration of the ABE evidence. This will mean obtaining it from the police as soon as possible and not simply relying on police summaries. There really should be a separate hearing on this issue, with skeleton arguments and for the advocates to have watched the ABEs (and indeed the judge) prior to this hearing. The funding for this work should make for an interesting discussion with the LAA.

Whilst it remains good practice for the court to obtain the analysis of the guardian on whether to call a child to give evidence, it is the court’s decision alone as to whether a child gives evidence. McFarlane LJ recognises in Re E that guardians often start from the premise that the child will suffer emotional harm should they give evidence. Is not this also the view of almost every social worker? The court must be alive to this argument and must thus balance this as just one factor to be weighed against the possible advantages of the child giving evidence in a determination to find the truth. Such emotional harm may be temporary as balanced against the prospect of a fair trial. What is certainly the case is that the emotional harm argument should not, as appears to be the case presently, represent the start and the finish of the argument.

The court will have to give a ‘full and sophisticated evaluation of the relevant factors and provide a judgment’. For many this will be a significant shift, but should certainly emphasis the need for this to be in the forefront of the court’s mind.

As a consequence the Court of Appeal note that, in accordance with recommendations from the President's working group on children and other vulnerable witnesses, the FPR 2010 will soon be amended to take account of the decision in Re W.

Plain English: A Judge’s journey into the unknown

Legal commentators are rightly excited by the judgment of Mr. Justice Peter Jackson in Lancashire County Council v M [2016] EWFC 9 and others, due to its use of plain English. The judgment is clear, concise and very easy to read. These were care proceedings concerning four children, in which there was a concern that the father of the youngest two children might take them to Syria. The judgment has been kept as short as possible so that the mother and her older children could follow it.

What is perhaps so surprising is that this use of plain English is not more common. Particularly when the Plain English Campaign was set up almost 40 years ago with a campaign against gobbledygook, jargon and misleading public information. Certainly no place for legalese. Some might even suggest that a plain English campaign is completely at odds with everything that lawyers stand for. But when many of us now only communicate in 140 characters or less perhaps it is finally time for lawyers to recognise and even embrace this the new world.

This type of judgment is long overdue. I appreciate that there is a balance to be struck between setting out the legal test, the analysis and indeed the basis for the judgment; but in care cases there also needs to be recognition of the parties involved and their understanding. Decisions made in care proceedings are life changing; for both the adults and the children. I have often sat with clients who comprehend the odd word here and there, in dare I say, somewhat long winded judgments: listening patiently and desperately simply to know if their children are coming home or not. Where more and more litigants are facing court without the assistance of legal representatives it imperative that more tribunals keep it as simple as Mr. Justice Peter Jackson.

A question of bias: from the children's guardian?

For a whole variety of reasons, it is not uncommon for parents in care cases to allege that the children’s guardian is biased against them. Over the years, I have had many parents tell me that the guardian has ‘taken against us’, ‘will not listen to us’ or simply ‘does not believe a word that we say’. More colourful language is not uncommon.

A similar argument recently came before Mr Justice MacDonald in QS v RS (No 2) (Application to Terminate Appointment of Guardian) [2016] EWHC 1443 (Fam).

Mother applied for the termination of the guardian on the basis of an allegation of bias. The matter related to the living arrangements of a child adopted in Nepal by British citizens. 

The mother’s complaint was that prior to receiving all of the evidence, a position statement had been filed on the guardian’s behalf expressing a view as to the child's best interests. The mother also made wider generalised assertions of unfairness.

The mother considered that the position statement appeared to favour the father's case. She therefore applied for the termination of the appointment of the children's guardian pursuant to FPR 16.25(1)(b). Mr Justice MacDonald dismissed her application, considering it to be misconceived.

He first reminded himself that where an allegation of apparent bias is made the test set out in Porter v McGill [2002] 2 AC 357 falls to be considered; namely "whether the fair-minded observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". 

Thus the issue of apparent bias arose in the context of the conduct of a person occupying a judicial or quasi-judicial role. This however is not role of the guardian. The guardian does not make a determination, simply a recommendation. Whilst the guardian is under a statutory duty to advise the court, he or she is not the decision maker in the process - that responsibility lies with the tribunal.

The court further acknowledged that the right to a fair trial guaranteed by Art 6 is not confined to the 'purely judicial' part of the proceedings. Unfairness at any stage of the litigation process may involve a breach of Art 6 (Re L (Care: Assessment: Fair Trial) [2002] 2 FLR 730). However, where it is said that biased or unfair conduct on the part of a person under a duty to advise the court will lead to bias or unfairness in the proceedings, a causal link must be demonstrated.

In reality this will be extremely difficult to prove. You would have to show that this person would impose his or her influence on the tribunal.

The court reiterated the role of the guardian - they are not a “neutral” party nor do they have a “special” status within the proceedings. Whilst this is perhaps trite, there are many guardians and indeed tribunals who forget this but ultimately the court is the decision maker and must reach its decision by reference to the matters set out in the Children Act 1989 s 1 having regard to the totality of the evidence before the court.

In this case Mr Justice MacDonald held that there was no real likelihood that the approach of the guardian would lead to unfairness in the proceedings such that it required the termination of his appointment.

The court's discretion to terminate the appointment of a children's guardian was one that should be exercised sparingly; taking into account the need to deal with cases justly having regard to the welfare issues involved.

This decision should not come as a surprise but it perhaps reminds us of two points.

1.It is perhaps a case to have to hand, simply sometimes to remind tribunals of the observations of Macur LJ in MW v Hertfordshire County Council [2014] EWCA Civ 405 at [32] that the children's guardian is a witness subject to the same judicial scrutiny as any other witness and starts with no special advantage in proceedings as compared with other witnesses. Far too often tribunals appear to forget this and perhaps, dare I say, take their word as gospel.

2.And for advocates everywhere to remember the words of Ward LJ in Re J (Adoption Appointment of Guardian ad Litem) [1999] 2 FLR 86 where he re-iterated that frequently, a children's guardian holding a certain view can be persuaded under cross-examination to change their minds, that the "flexibility, rigidity, competence, balance, wisdom or other aspects of her conduct of the case are matters which the court will be invited to take into account when deciding whether to accept her evidence or recommendations". Whilst I am not sure I can agree with the word ‘frequently’, let me assure you that it can and does happen: sometimes.

Back to basics - from A to J

The President of the Family Division has once again shown his frustration with those involved in public law work. Not for the first time this year the President (endorsed by the Court of Appeal in Re J (A Child) [2015] EWCA Civ 222) has stressed that pleadings need to be drafted properly, threshold matters and a failure to comply is simply unacceptable.

As set out in Re A (A Child) [2015] EWFC11, it is necessary for the Local Authority to link the facts it relies upon with the conclusion that the child has suffered, or is at risk of suffering, significant harm. This might not be obvious, for example in relation to emotional harm. A Local Authority might plead that a parent does not co-operate with professionals but why does this establish significant harm or the risk of significant harm?

The President reminds us that it is for the Local Authority to prove its case on the balance of probabilities. If its case is challenged on a factual point, it must adduce proper evidence. Hearsay evidence, though admissible, may not be sufficient to establish a fact against the firsthand, oral evidence of a parent.

The President makes a point of referring to hearsay evidence in social work chronologies and case recordings. Often through sheer repetition of hearsay evidence, the Local Authority and other professionals working with a family, accept it as fact. As the President stated:

“a local authority which is unwilling or unable to produce the witnesses who can speak of such matters first-hand, may find itself in great, or indeed insuperable, difficulties if a parent not merely puts the matter in issue but goes into the witness-box to deny it.”

It will be interesting to see how this develops where Threshold remains an issue at final hearing. It suggests that a significantly greater number of witnesses will need to be called than hitherto. 

An all too familiar plank of a Local Authority's case against a parent is their lack of insight or acceptance of a concern. The President makes the perhaps obvious point that if this ‘thing’ or concern is in issue, the Local Authority must both prove the ‘thing’ itself and also show why it has the importance attributed to it by the Local Authority.. 

The President offers strong guidance on how threshold and proposed findings of fact should be drafted. Findings that someone has “appeared” to do something or that another person have reported something are wrongly formulated. 

The President reminds social workers, children's guardians and family judges of the case law which establishes that society must be tolerant of diverse standards of parenting, that the courts are not in the business of social engineering and that we must have a degree of realism about prospective carers.  

The President stressed the words of HHJ Jack in North East Lincolnshire Council v G & L [2014] EWCC B77 (Fam)

 " The courts are not in the business of providing children with perfect homes. If we took into care and placed for adoption every child whose parents had had a domestic spat and every child whose parents on occasion had drunk too much then the care system would be overwhelmed and there would not be enough adoptive parents.  So we have to have a degree of realism about prospective carers who come before the courts."

The Court of Appeal in Re J (A Child) [2015] EWCA Civ 222, considered that the question of whether a young, immature couple was likely to cause significant harm to their baby required a far greater degree of analysis that it had received from the Local Authority or indeed the Judge. It stressed that even where Threshold was met, there needed to be a similarly thorough and clear analysis of the evidence to determine the welfare outcome. One does not simply follow the other.

TOIL

Perhaps the three witches in William Shakespeare’s Macbeth had it right all along when they chanted their hymn of “double, double toil and trouble: fire burn and cauldron bubble”. Their reference of course had nothing to do with TOIL being an acronym for Time Off In Lieu – the latest weapon in the work – life balance for many employers.

But perhaps in hindsight  the witches had it right all along, as for many employees whilst the gift of TOIL has been conceded by their employers is it in the best interest of their career to claim or is that in fact just going to cause them a lot of trouble down the line.

TOIL is the latest concept in the current debate over the work-life balance. TOIL is already used within the civil service and across the public sector. However even big businesses such as BT plc see the benefit of a happy and stress free work force.

TOIL arises where an employee has worked their contractual hours and rather than receiving overtime for any additional work they can simply claim TOIL. They can tot up the extra hours which they work and use them when it is of more benefit to both them and the employer.  If you work an extra hour you get an extra hour at a more mutually convenient time. Hours can be added up at the end of the week or month and the accrued time taken as additional holiday. Travel can also be included within your TOIL timetable where the travel in is addition to your standard travel. It is most unusual for ordinary journeys to and from work to be included, but if you are working away from the office or taking extra time in meeting clients then this additional time can be included. As too can any additional time you spend working at home writing reports or even checking e-mails. TOIL is not a statutory benefit given as of right, but something to negotiate with your employer either at the start of a contract or at the most appropriate time.

So TOIL seems great. An excellent way for employees to receive proper recompense for putting in those extra hours. If the employer can not afford to pay overtime then the employee can earn a few extra holiday days. Or put more simply get back the time they put into the employer’s business. But the dilemma is do you actually take your TOIL time or do you just knuckle down and give the time freely to your employer in the hope that you get noticed for the right reasons and are rewarded not with extra days of holiday but with a cash bonus and promotion.  If you do take your TOIL and the rest of the team does not avail themselves of taking their time off are you really seen as a team player or the sort of person that the company is looking for? When it comes to promotion is the employer going to give the post to the person who works the overtime freely or the one who meticulously marks up the extra time and claims it as TOIL?

A legal conundrum in a dog eat dog world

About a week or so ago an old friend of mine called my out of the blue in a flood of tears. She was panic stricken at the break up of her relationship. He had after all been the ‘one’, but during the course of our conversation it transpired that alas she was simply one of many. But her angst was not directed at her wayward boyfriend, but at the potential loss of her true love, a pedigree West Highland Terrier called Lollo. The dog had been bought to cement their relationship but that was over two years ago and now with the break up, the ownership of the dog was proving amongst others a bone of contention. And hence the call to her favourite lawyer. 

But my friend has not been alone in her trauma. It has been rumoured that Les Dennis and his ex wife Amanda Holden split their Westies so that they could have one each when they relationship ended. With one in three marriages ending in divorce, not to mention the number of couples who buy pets without walking up the aisle the question of pet litigation is becoming more and more pertinent.

 So what does happen to the pet when couples split up? In the eyes of the law pets are simply referred to as chattels. A chattel is an old legal word which basically refers to an item of personal property. As such in a legal context a pet is to be compared with nothing more than a lamp, a couch or even an old chair. And to think some say the law is an ass. Gosh now why would they say that?

So the relationship goes horribly wrong (with your partner not your pet) and after the DVDs have been divided into two piles the only thing remaining is the dog or cat (or snake for that matter) soulfully staring at the two of you. So how do you cut the pet in half?  

Well if agreement can not be reached as to the question of ownership of the pet or even visitation rights then recourse would need to be made to the courts to determine the question of residence. Not an ideal situation by any extent of the imagination.

On the other side of the Atlantic pet litigation is becoming big business. In August last year a Canadian court ordered that Keith Duncan, a truck driver in Edmonton pay maintenance to his ex wife in the sum of $200 per month to look after not the children, but the pet St. Bernard. As you can perhaps guess in America pet litigation is big business. Courts have been ruling on custody, maintenance and access with ex partners spending thousands of dollars on ownership of their favourite pet. We have had ambulance chasers so perhaps the next natural progression is kennel chasers.  

But in Britain things do not work quite like this. Well not yet any way. 

An action would in all likelihood need to be brought in the small claims division of your local county court for a declaration seeking ownership of the pet. This basically means that the value of the pet is less than £5,000 and the issue is one which can hopefully be decided without the need for either party to be represented by lawyers. The purpose of the small claims court is basically to avoid expensive and often unnecessary costs in the pursuit of justice.

A claim form would be issued against your former partner (and a fee paid) and after they have filed a defence the case would come before a District Judge who would hear the evidence and make a decision as to who gets the pet.

It would be necessary to ask the Judge to determine the question of ownership of the pet and perhaps also the return of the pet from your ex-partner. In making their decision the Judge will be interested in who originally purchased the pet; was the pet a gift; who undertook the main responsibility for the pet and any documents in existence about the pet such as in whose name any insurance policy is in or any Kennel Club registration. The simple reality is that the Judge would determine each case on its individual facts and merits.

The Judge unlike in cases regarding children does not have the authority without the consent of the parties to agree to access or visitation rights. There is a substantial risk however that the Judge could potentially order that the pet be sold and the proceeds of sale be split between the parties. That however is clearly not what either party would be looking for.  

As difficult as it might seem there may be merit in a meeting with your ex-partner under the auspice of something lawyers call mediation, where you could both sit around a table and try and find a solution. If that is too difficult a trained mediator could try and work with both of you to sort out the question of ownership or some form of shared access. 

So what is the answer? As unsavoury as it may sound the real answer may well be to enter into a form of pre-nuptial agreement with your partner when you invest in a pet. A formal document setting out perhaps who paid for the pet and who actually owns it. The alternative could be you stay together for the sake of the pet, well after all many people would do the same for a child. To paraphrase another slogan ‘a pet is not just for the relationship, it is for life.’

Mitchell : The Court of Appeal gets cold feet?

Craig Barlow and Jason Hadden consider the Court of Appeal’s recent decision in Denton v White clarifying the guidance it gave in Mitchell

Introduction

Practitioners will be conscious of the ridiculous practice that ensued in the lower courts following the “guidance” dispensed by the Court of Appeal in Mitchell v News Group Newspapers [2013] EWCA Civ 1537 as to the operation and application of CPR Part 3.9 “Relief from Sanction”.

In many Courts, the tiniest infraction of either a CMC direction specifying a time for an act to be done (even if it wasn’t an unless order) or the breach of a time set forth in a CPR Rule or Practice Direction (even if no default sanction applied) was regarded as engaging the “relief against sanction” provisions with generally lethal effect.

Mitchell was eagerly embraced by a streamlined Civil Court system crippled by spending cuts and burgeoning cause list. The message conveyed in Mitchell was that there was unmistakable. There was a “New Sherriff in Town”. Delay would not be tolerated. Strict adherence to the modern CPR procedures would be ruthlessly enforced.  Defaulters would effectively lose their place in the queue for the greater good and like a game of ‘snakes and ladders’ they would have to start all over again. They would pay their and the other side’s costs and if they could not either through the exigencies of finance or statutory limitation, then tough luck.

‘Justice’ had lost its talismanic value and the criterion was whether the Court had given them the opportunity of access to justice. It wasn’t three strikes and you are out; it was one strike and you are out. A new justice of finality, well subject to the odd appeal and the potential to reissue.

Mitchell, arrived in the month prior to lawyers completing their CPD points for 2013 and quite rapidly the above interpretation of Mitchell was transmitted through the legal profession like a plague.

Denton v White

In Denton v White [2014] EWCA Civ 906, the CA was confronted by conjoined appeals in Denton, Decadent and Utilise.  What was common to all three appeals was that the time frame specified in a CPR provision, practice direction or Order had been exceeded and that failure was delivered with a specified sanction.

In Denton, additional witness statements were served a year after the period specified and thus the sanction in CPR Part 32.10 applied “…may not be called to give evidence unless the Court gives permission.” Nevertheless, the judge gave permission and the trial date was vacated.

In Decadent, a litigant was subject to an “unless order” striking out their case unless court fees were paid on a given date. The fees were not paid on time., but a month later. The court refused relief from sanction.

In Utilise, the litigant’s costs budget was filed 45 minutes late and the litigant had not notified the Court of the result of negotiations, as so ordered. The lower Court refused relief.

The Outcome

The CA allowed all three appeals holding that the judges in each had not correctly interpreted or applied CPR Part 3.9 and the guidance in Mitchell.

As Lord Dyson MR opined at paragraph 3 of Denton:

“… Mitchell has been misunderstood and is being misapplied in some courts. It is clear that it needs to be clarified and amplified in certain respects.”

At paragraph 9, the CA went on to remind practitioners that the costs budget in Mitchell had been filed 6 days late, 1 day prior to the Case Management Conference scheduled to consider those costs budgets, the delay had caused the CMC to be adjourned and disrupted the Court’s List. The automatic sanction engaged and that required the defaulter to obtain relief from sanction. Thus, explains Denton, the real reason the appeal in Mitchell was dismissed was that the lower court had correctly applied CPR 3.9.  Since it was a matter of reasonable discretion the CA could not intervene.

The CA pointed out that CPR Part 3.9 (1) is layered and that on its literal construction:-

(1) The Court’s first task is to identify the Rule, Practice Direction or Court order imposing the sanction;

(2) Next the Court considers all the circumstances of the case and the need-

a.     For litigation to be conducted efficiently and at proportionate cost; and

b.     To enforce compliance with the rules, practice directions and orders.

But as the CA then explained a more nuanced approach was needed.

The CA was concerned that CPR 3.9(1) was not being pragmatically or uniformly applied. Worse, some judges had got hold of the wrong end of the stick entirely and adopted the stance that unless (i) a default could be characterized as “trivial”; or (ii) there is some good reason for the default, the Court was bound to refuse relief.  Denton specifically castigates such a judicial mindset and unequivocally eschews it as wrong. 

The Revised Guidance

It is from paragraphs 34 of Denton onwards that – depending upon one’s disposition towards cynicism– the CA either re-writes the Mitchell guidance or as Lord Dyson MR would have it “clarifies and amplifies it.” It does not particularly make any difference provided that the CA guidance is properly understood and applied. The 9 bullet points to be extracted are these:

1.     What Mitchell sought to explain was that factors (a) “efficiency and proportion” and (b) “enforcing compliance” in CPR Part 3.9(1) are of considerable weight. They were not to be casually disregarded. They were designed to engender a cultural change from the old lax approach to Court timetables. 

2.     But even when giving those 2 factors their significant weight, the Court must to consider “all the circumstances of the case” when exercising a discretion to grant or refuse relief from sanction.

3.     The rules are not ‘trip wires’ and compliance with them is not an end in and of itself. The prime objective is to secure the litigant’s compliance with them because that is the route to the efficient, proportionate conduct of litigation. By these means the Court can deal with cases fairly and justly.

4.     A fundamental objective is to make Case Management Directions that were realistic and achievable. The Court should be careful about making “unless orders”. Such orders are designed to coerce compliance and are best used to bring about efficiency and costs savings at appropriate stages, if the defaulter persists.

5.     A key factor when considering relief from sanction is the need to avoid the waste of the litigants and the Court’s resources with adjourned hearing and broken trial windows fixtures.  Where a hearing or trial window has been set and non-compliance imperils the same, the weight and importance of factors Rule 39.1(a) and (b) magnify. Depending upon all the relevant circumstances including promptitude, explanation,  previous history of compliance, conduct etc the Court will have to balance the competing factors.

6.     Nevertheless, in the vast majority of situations where one litigant has slipped in compliance but proposes to appropriately remedy it, the Court expects the other litigants to be co-operative and consent to an extension of time or relief from sanction.

7.     The Court will discourage contested applications for extensions of time or relief from sanction. In general, these should usually be disposed of by consent. See Rule 3.8(4).

8.     One litigant is not by a side wind to gain a tactical advantage from the other’s default by refusing to co-operate. A party’s lawyers should think very carefully before advising their clients to adopt a strategy of non co-operation. The litigants are required to assist the Court to further the over riding objective. Court will robustly assess a party’s unreasonable refusal to agree to an extension of time or relief from sanction and visit such a party with appropriate costs orders or record its reasons for the use of the trial judge or costs judge at a later stage.

9.     Where contested, the Court should ask whether the default is significant or serious in the context of the litigation. The answer will usually be obvious.  If it is not significant or serious, an extension/ relief should ordinarily be granted without the need to perform any balancing of factors. Where it is not obvious, the Court ought then proceed to weigh and balance in accordance with the above.

Conclusion

The word “trivial” as a rule of thumb test, has been discarded in favour of not “significant or serious”.  The core policy objectives the CA seeks to pursue with the application of Rule 3.9 is made explicit in Denton. Arguments about extensions of time / relief from sanction are to be discouraged unless the failure imperils a hearing date or trial fixture. The Court emphasises a more co-operative approach between litigants to assist the Court in managing the case, steering it step by step and keeping it on track to the trial date. The shift in emphasis between Mitchell and Denton is that the CA does not expect the litigants to eat up the Court’s resources in squabbles about time and compliance if the same can sensibly be resolved between them.  Perhaps the clue to this judicial shift is that the Law Society and Bar Council were invited to intervene in these appeals.  Its possibly indicative that the Civil Appeals Office detected a worrying trend in appeals being lodged. Its most unusual that within 6 months of Mitchell three conjoined appeals involving the application of Mitchell reached the CA. All lower Court decisions in issue. All purporting to apply Mitchell. All of them reversed. 

Craig Barlow is a barrister at Ely Place Chambers in London

Jason M Hadden MBE is a barrister at St Ives Chambers in Birmingham

Justice Stripped down to it’s underpants.

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It is not every day a senior member of the judiciary is charged with a criminal offence, let alone one consisting of exposing himself in public. It is rarer still that a prosecution leaves us with no conviction but with victims on all sides. The recent case of Sir Stephen Richards, the Court of Appeal Judge, achieved this ignominious distinction and now ought to represent a zenith in public dissatisfaction with the criminal justice system. However you slice it, something went wrong.

It is unusual for a prosecution leaves to us with no conviction but with victims on all sides. The recent case of Sir Stephen Richards, the Court of Appeal Judge, achieved this ignominious distinction and now ought to represent a zenith in public dissatisfaction with the criminal justice system. Sir Stephen elected for a Magistrate’s Court trial. He was acquitted. We think that from everyone’s point of view the prosecution was wrong and has produced a series of innocent victims. The most obvious victim in this case is Sir Stephen Richards. A relatively young, widely respected Lord Justice of Appeal tipped to become a future law lord and perhaps even Master of the Rolls, he suddenly found himself catapulted into criminal proceedings, accused of being little better than a dirty old man in a Mac. He was acquitted on the basis that the prosecution had not discharged the burden of proof. To an outsider this always seemed the most likely verdict. To those who knew him a certainly.

There was always an Alice in Wonderland quality to this prosecution. The reason given for the dismissal of the charges sub silentio brands the British Transport Police (BTP) as incompetent and, by the same token, creates doubt that the Crown Prosecution (CPS) considered the sufficiency of the evidence. Bluntly put, the authorities commenced a prosecution of a senior member of the judiciary without adequate corroboration of the identification. Only time will tell what damage it has done to Sir Stephen's reputation and career. The fact that two women have since come forward with fresh allegations suggests it will be considerable.

The next victim is the poor lady who was subjected to indecent exposure on the Raynes Park to Waterloo train, not once but twice. Whilst she preserves the anonymity denied Sir Stephen, which may be simultaneously both a blessing and a curse, she can hardly feel vindicated at the hands of the system. It follows from Sir Stephen's acquittal that the flasher remains at large and free to stalk other commuter trains. It seems improbable that that person will ever now be found and brought to justice - a thought hardly likely to comfort the complainant.

The third victim is the public. They will have three main concerns. First, that the acquittal means the true culprit has not been brought to justice. This means that the original ‘investigation’ and prosecution were a shambles because the CPS prosecuted the wrong man. Second, that the trial has tarnished the reputation of an innocent man. We think that does matter to the British public. Third that in light of recent allegations, the Criminal Justice System has singularly failed to achieve ‘certainty’ either for Sir Stephen or the Public. With ‘new’ allegations hanging in the air, inevitably there’s fresh tirade of speculation.  No-one likes that.

Sir Stephen was tried by a male district judge and two lay magistrates, who happened to both be female. This was exceptional. As salaried, professional justices, District Judges sit alone in the Magistrates Court; conversely, lay justices, not professional judges or even lawyers, sit in panels of three. They do not sit with District Judges. As previous reported by The Times, apparently, District Judge Workman made this unusual decision after "consultation" with the President of the Queens Bench Division, Sir Igor Judge, who sits in the Court of Appeal potentially alongside Sir Stephen. We do not know when that decision was made or why Sir Igor Judge was consulted, but it was extraordinary that it should have happened. This is because there appears to be no statutory basis for it.
 

We are not suggesting that there was any impropriety in the proceedings but as the Court of Appeal has stressed, there can be the appearance of bias without any actual bias.  Any "consultation" between an adjudicating magistrate and a Court of Appeal judge - a colleague of the defendant - in the run-up to the trial is unfortunate -   It may well be the case that the judiciary considered that by involving lay magistrates they thought that were protecting both the integrity of the judiciary and avoiding any suggestions of bias. But any change to the way such cases are run, can inadvertently create the opposite effect in the public's mind.

The appearance of impropriety is also not improved by the fact that District Judge Workman was awarded a CBE on July 16, just two days after the decision. District Judge Workman has worked tirelessly for the improvement of the administration of justice over the years, and his CBE is objectively justified. The decision to honour him would also have come much earlier than the date it was announced to the public. But that's not the point. The fact that his ruling was rigorous, logical and well-reasoned does not dispel the potential perception that the judiciary has merely taken care of one of its own. Many people will have assumed from the outset that there was as much chance of Sir Stephen being convicted as Elvis being found alive, a point of view that represents a kind of reverse prejudice but which is, sadly, very difficult to demolish. It is probable that the ‘system’ bent over backwards to not only evince but actually create an environment where Sir Stephen had a scrupulously fair trial.

The problem is that public confidence in the justice system will have been dented by the inadequacy of the prosecution, every aspect of which was, upon scrutiny, desperately unsatisfactory. The BTP's failure to obtain CCTV footage of the incident, for one thing, is nothing short of inexplicable. The police claim that sometimes such footage cannot be obtained for "operational reasons" is, in a city that has been through the 7/7 terrorist bombings, fatuous. These concerns increase when the CCTV surrounding the most recent failed terrorist attacks in London was apparently swiftly recovered. So why wasn't the CCTV footage relating to the complainant’s allegations against Sir Stephen obtained within 31 days of the complaint? Legally, the footage had to be preserved for at least that period. So why couldn't the Police get hold of it? Who then decided that a prosecution of a sitting Court of Appeal judge was justified when there was no corroborative identification evidence?

Sir Stephen, understandably relieved that his ordeal was at an end, declared: "I have put my trust in the legal process; I am delighted it has enabled me to clear my name."

He was speaking in a personal capacity and under extreme conditions. He and his family were put through hell. He deserves some latitude. For otherwise, it would be surprising for an Appeal Court judge to express such public confidence. The Defendant was acquitted at the conclusion of a process that demonstrated the worst ineptitudes of the ‘criminal justice system’. The Prosecution had failed to obtain the key piece of ‘corroborative’ evidence for the trial. The absence of that material was cited by the court as the pivotal reason for finding that the Prosecution had not proven its case. That was the basis for the acquittal. Equally, Sir Stephen ought to have been painfully aware that it was capable of being the vital evidence to exonerate him and set whispering tongues at rest.  Thus as a Senior member of the judiciary, if Sir Stephen perceives his acquittal by a Criminal Court as in and of itself  "clearing his name" we believe that he and we entertain profound ideological differences about the function of the Criminal Courts. The true tragedy here is that the criminal justice system spectacularly failed. It had a victim, but it prosecuted the wrong man and it did it so badly. At some stage it potentially possessed the materials to find the right man. Inexplicably, that evidence wasn’t obtained. Quite who is to blame for that, we might never know. If there’s a “closing ranks” argument to be made, we’re not convinced it should be aimed at the judiciary. We think there are better targets: for surely the investigating and prosecutorial authorities have some considerable explaining to do?

Hopefully in future the same authorities will be more scrupulous in their gathering of material and analysis of identification evidence in criminal cases. But we’re doubtful that much will change or at any rate soon. This is because no-one has stepping forward to shoulder responsibility. Quite the opposite. The Public have been confronted with ‘explanations’ from the authorities citing “operational” difficulties in obtaining the CCTV evidence. One can't help but feel that a similar thing could happen again.  We don't imagine that the run of the mill defendant will find the Magistrates' Court consulting the President of the Queens Bench Division about the composition of their panel.

The spectacle of Sir Stephen exhibiting his underpants in a court room was an unfortunate one, but the real trouble is that this case has stripped justice itself to its underwear. We are all the losers.

Judicial Bias and the Flying Carpet

The Court of Appeal’s recent decision in El Faragy v El Faragy [2007] EWCA Civ 1149 was always going to make the National Press especially where the court held that - as a matter of law - an experienced Family Division High Court judge (Singer J.) should be recused from adjudicating upon the division of assets in a big money divorce case as a result of certain remarks he had made during a number of interlocutory applications in the same proceedings.

The newspapers did not spare Singer J’s blushes and reported in lurid detail the remarks the judge had made about the Egyptian and Muslim husband. In the authors’ view contextually viewed the judge’s remarks whilst sometimes colourfully expressed were – some might feel - justified. Singer J found himself squarely confronted by an allegedly rich husband who had – not merely on Singer J’s findings, but previous judge’s findings – consistently and flagrantly defied the Court’s orders to the potential expense and detriment of his former wife. 

“He (the husband) is running a campaign. It is perfectly clear to me, prima facie , I keep having to say that because, of course, I may be persuaded out of the near conviction , that the campaign here is to make sure that she is put at the maximum disadvantage by the non-compliance with orders”

And impliedly furious with the husband’s alleged delay and prevarication:

“What good would that do [the wife] if he chose to depart on his flying carpet”

“It is Ramadan quite soon…”

“The Sheikh would be here to see that no stone is unturned, every grain of sand is sifted.”

And commenting upon the husband’s potentially evasive affidavit evidence, Singer J asked of the advocate:

“A bit gelatinous is it?... Like Turkish Delight?”

But, perhaps fatally, Singer J. went slightly too far when prophetically he observed that:

“…I have formed a view about this case, not dissimilar from that which Thorpe LJ formed [in an earlier interlocutory appeal] and maybe I should not ultimately take the final hearing…”

Nevertheless, confronted by the import of these comments, Singer J refused to recuse himself.  The Court of Appeal however took a rather different approach and reversed him holding that:

“Making every allowance for the jocularity of the judge's comments, one cannot in this day and age and in these troubled times allow remarks like that to go unchallenged. They were not only regrettable…they were also quite unacceptable. They were likely to cause offence and result in a perception of unfairness. They gave an appearance to the fair-minded and informed observer that that there was a real possibility that the judge would carry into his judgment the scorn and contempt the words convey. Singer J. may talk too much; yet he is a good judge. Unfortunately for him and for all of us, on this occasion he crossed the line between the tolerable and the impermissible.”

Whether Singer J ‘crossed the line’ and created the ‘appearance of bias’ is ultimately a matter of impression.  Ward LJ applied the correct legal tests to the facts and gave a judgment in which Mummery and Wilson LJJ’s concurred.

This article dedicated to the exposition and critique of just one paragraph of the judgment. Ward LJ entitled it “A postscript’. It is at best an obiter dictum, but therein he suggested a new procedural approach practitioners might adopt to the ‘recusal’ process.

We should emphasise that Ward LJ labelled the paragraph in issue a ‘postscript’. It is perhaps therefore best viewed as a judicial ‘after-thought’. Nevertheless, Mummery and Wilson LJJ’s agreed with Ward LJ without any dissent.  Whilst Singer J’s recusal has attracted much comment, the ‘postscript’ has not. Before the new procedures postulated in El Faragy are adopted and gain their own momentum, we propose herein to at least ‘test’ them and aim to demolish them. As you have read above, Ward LJ intimated that Singer J might ‘talk too much’. It is difficult for us to resist the mischievous temptation to submit that Ward LJ has in his ‘postscript’ perhaps fallen prey to the same vice.

Ward LJ said this

“It is an embarrassment to our administration of justice that recusal applications, once almost unheard of, are now so frequently coming to this Court in ways that do none of us any good. It is, however, right that they should. The procedure for doing so is, however, concerning. It is invidious for a judge to sit in judgment on his own conduct in a case like this but in many cases there will be no option but that the trial judge deal with it himself or herself. If circumstances permit it, I would urge that first an informal approach be made to the judge, for example by letter, making the complaint and inviting recusal. Whilst judges must heed the exhortation in Locabail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague. If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one's colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.”

The first and second sentences are curious and potentially contradictory. It is difficult to understand why ‘recusal’ applications represent an embarrassment to the administration of justice.  Stranger still that if they are embarrassing, it is right that they are made. At first blush one would have thought that their existence is a practical exposition of the legal system’s adherence to the cardinal principles of fairness and impartiality. So perhaps contextually, Ward LJ might be suggesting that judges are either sitting when they ought not to, or improper applications are being made to recuse them or a combination of both. Either way, these opening sentences communicate judicial disquiet or uneasiness with the present procedures.

Nevertheless, two propositions can be extracted from the remainder of the above passage:

(1)  Before a formal application to recuse a judge is made, it is preferable that an ‘informal approach’ be made to the judge making the complaint and inviting his/ her recusal;

(2)  Where practical, it is preferable for a recusal application made against one judge to be heard by another judge.

We turn to argue that each of these two proposals are for differing, reasons defective.

The ‘Informal Approach’

It is to be borne in mind that the ‘postscript’ is made in the context of an appeal from the Family Division and historically ‘private’ hearings in that Court are generally the rule rather than the exception. Thus it might be said that the ‘informal approach’ is to be limited to that Court. However the judgment does not say so in terms. It is even more challenging to discern any legitimate distinction between recusal applications in a family case as opposed to any other type of civil case. Further, if it applies to civil cases why, by extrapolation, should it not logically apply to criminal cases. The proposition appears to be advanced as one of general application.

With respect to Ward LJ it is submitted that the validity of the proposal that in the first instance a party objecting to a judge should make an ‘informal approach’ to that judge can not withstand legal scrutiny. The seeds for its destruction lay in the genesis of the common law rule against the appearance of bias. It is neatly encapsulated by Lord Hewart CJ’s pithy statement that:

 “Justice must not only be done, but must be seen to be done.”

The common law has long recognized that the Courts do not exist in a vacuum. They exist to dispense justice according to law and that public confidence is maintained by the openness and transparency of this process. The obvious point is that ‘recusal’ is not some ‘private’ process transacted between the judge and the litigants: it is primarily about maintaining the public’s confidence and trust in the justice system by verifying the judge’s impartiality and thereby his independence.  This wider ‘public interest’ consideration is not vindicated if Ward LJ’s ‘informal approach’ model is adopted.

The legal objection is subtle but concrete. For reduced to it’s basic elements Ward LJ’s prior decision that Singer J ought to be recused rested on the premise that his ‘remarks’ had resulted in a situation whereby if he adjudicated,  justice would not be ‘seen’ to be done. But by parity of logic justice is not ‘seen to be done’ if litigants can recuse judges informally and behind closed doors.

It is thus a tragic irony that whilst it purports to champion the ideal that the ‘fairness’ of the judicial process fundamentally rests upon the impression of the “fair minded and informed observer”, the Court has casually alienated that touchstone by espousing an ‘informal approach’ recusal process that hides itself away from the ‘observer’ and divests him of the ability to be ‘informed’.

It is submitted that there is no justification for departing from that ancient common law principle. It is striking that Ward LJ fails to identify any reason for so doing, let alone a compelling justification. There were two other judges in the Court of Appeal and it is perhaps disappointing that none of them appear to have considered either the constitutional implications of the ‘informal’ process being adumbrated or even the effect thereon of the Article 6 ECHRFF guarantees or public policy.

Properly stripped down, it is submitted that there is no intellectual consistency in the rationale of El Faragy. It applied with rigour the ‘fairness’ principle to the Singer J, but neglected to do the same to Ward LJ’s proposals that the ‘recusal’ process may be conducted ‘informally’ and away from the public gaze.

Further, Ward LJ implies in the following passage that recusal is discretionary:

“Whilst judges must heed the exhortation in Locabail not to yield to a tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague.”

With respect that is wrong and flatly contrary to authority. The notion that a judge can pay lip service to Locabail, deny the criticism but just pass the case on to a colleague is anathema to every concept of open justice. It is neither a question of ‘honour’ or discretion. Both a judicial oath and a public expectation stand as insurmountable obstacles to such an allegedly pragmatic course. The legal test for bias is not to be casually cast aside. It is most curious that Mummery LJ purported to agree with Ward LJ’s above statement because in AWG Ltd v Morrison [2006] 1 W.L.R. 1163, at para 20 he had previously opined to the very opposite. He said:

“…I do not think that disqualification of a judge for apparent bias is a discretionary matter. There was either a real possibility of bias, in which case the judge was disqualified by the principle of judicial impartiality, or there was not, in which case there was no valid objection to trial by him.” 

These two statements are logically irreconcilable and represent a spectacular demonstration of the Court’s double standards in El Faragy. It apparently unwittingly applies a stricture to the judge it fails to apply to its own ‘postscript’ proposals. Ward LJ’s judgment does little to inspire public trust in the transparency of the judicial process. He purports to authorize ‘secret communiqués’. He does not inform the reader who is to be privy to these communications, how the principles of audi alteram partem are to be safeguarded or even applied, how a reasoned judicial decision is to be rendered or publicly pronounced or to even challenge this ‘informal approach’. If  SingerJ. “may talk too much” then it is submitted his error is rather minor beside that perpetrated by Ward LJ.

The ‘informal approach’ is a repudiation of one of the most basic tenets of English law:  litigants are not to have secret communications with the judges determining their disputes. Justice is to be done openly. As Mummery LJ took pains to emphasise in AWG Group Ltd v Morrison [2006] 1 W.L.R. 1163 at para 29:

“[I]nconvenience, costs and delay do not… count in a case where the principle of judicial impartiality is properly invoked. This is because it is the fundamental principle of justice, both at common law and under art 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.”

At a stroke the judgment of Ward LJ paves the way for ‘informal’ approaches to judges by partisan lawyers representing litigants in pending cases before those judges. Maybe with a little pressure here and a little nudge there the skilled can thereby replace one judge with another they find preferable. Presumably, ‘telephone calls’ or little ‘chats’ in some of London’s prominent private members clubs are to be permitted.  If  that is the Court of Appeal’s idea of a strong, fair and independent judiciary, then we respectfully dissent. We can not think that this is what the ‘postscript’ in El Faragy intended. The sooner the Court of Appeal recants from this heresy the better.

The second proposition advanced in El Faragy is that where a formal application to recuse a judge is made, it is preferable that whenever practicable that application be heard by another judge. We make two objections to this proposition: one legal, the other pragmatic.

The Legal Objections

It is challenging to glean what the Court of Appeal intended to achieve with this proposition. The “core concept” must be that it is wrong or somehow contrary to natural justice for a judge to effectively sit upon judgment upon himself.  If that is the Court’s legal premise in El Faragy, we submit that it is per incuriam.

In Sengupta v Holmes [2002] EWCA (Civ) 1104 the CA was confronted by a challenge to the constitution of the panel of judges. One judge had previously denied permission to appeal in the same case and - the argument ran - he should be recused from the appeal – having previously expressed the lower court’s decision was correct. This argument was rightly and resoundingly rejected.

Laws LJ in this edited passage from Sengupta shows in his reasoning “the difficulties” with the El Faragy “postscript”:

“It is not only lawyers and judges who in various states of affairs may be invited — they may invite themselves — to change their minds… a readiness to change one's mind upon some issue… is a capacity possessed by anyone prepared and able to engage with the issue on a reasonable and intelligent basis… However much we may in the name of public confidence be prepared to clothe our [objective fair minded] observer with a veil of ignorance, surely we should not attribute to him so pessimistic a view of his fellow-man's own fair-mindedness as to make him suppose that the latter cannot or may not change his mind when faced with a rational basis for doing so… [J]udges in fact change their minds under the influence of oral argument…. Knowledge of it should, in my judgment, be attributed to the fair-minded and informed observer; otherwise the test for apparent bias is too far distant from reality. It is a commonplace for a hearing to start with a clear expression of view by the judge… which may strongly favour one side; it would not cross the mind of counsel on the other side then to suggest that the judge should recuse [himself]… Another aspect of our legal culture is the expectations which the judges have of each other. Far from supposing that his fellow-judge would or might stand by an earlier view for no other reason that he had formed it, any judge would positively expect that his fellow would without cavil alter his view if he were objectively persuaded that it ought to be altered; and, to be blunt, would think much the worse of him if he would not. This too, it seems to me, would be known to the bystander.”

Contrary to the implication of El Faragy, it is evident from Sengupta and that a judge is presumptively sufficiently intelligent, flexible and capable to adjudicate upon an allegation that his continued involvement in the case will unlawfully breach the rule against bias. The judge is not – as Ward LJ insinuates – inherently incapable of fairly and judiciously applying the legal tests to himself.

That is not to say that the judges are invincible. If a judge erroneously fails to recuse himself, then the appeal court stands ready to correct that error. But it is to go too far to lay down a blanket proposition that it is ‘preferred’ that a judge faced with a recusal application should start from the premise that another judge should determine it.

It is one thing for the CA to entertain some sense of disappointment with the frequency with which it has, of late, reversed some high profile recusal decisions. But it is quite another for it to interpret that state of affairs as indicative of an endemic failure by judges of first instance to correctly deal with such applications so as to justify the CA implementing radical procedural change.  Further, it is arguable that it is unlawful for the CA to purport to issue such ‘guidance’ in civil cases. Section 1(1) of the Civil Procedure Act 1997(“CPA 97”) specifically provides that:

“There are to be rules of court (to be called “Civil Procedure Rules”) governing the practice and procedure to be followed in [the civil courts]”

It is a legal axiom that the common law can not survive specific statutory intervention.

By s. 2 of the CPA 97 the power to make those rules is vested in the Rules Committee and not with respect, Ward, Mummery and Wilson LJJ’s powerful though their views may be. Thus the ‘postscript’ in El Faragy is not merely erroneous but ultra vires. If the senior judiciary wish to change the procedures there is a specific statutory procedure. Otherwise the postscript represents “the naked usurpation of the legislative function”.

The Practical Objections

Assuming that, notwithstanding our above critique, the El Faragy postscript is to be applied by the lower Courts, we rhetorically ask how it is ‘guidance’ is to be practically implemented on the ground?

Applying El Faragy what happens if on day one in a normal trial, the trial judge gives an ‘indication’ as explicitly contemplated in Sengupta and one side takes issue with it and applies to recuse the judge?  Is it sensibly to be suggested that proceedings are suspended whilst another judge within say the same building is found to ‘rule’ on the objection?

We do not answer these questions for you. Put bluntly: the El Faragy test lends itself to a chaotic disruption of the trial process. The practical consequences of the El Faragy postscript have not been thought through.

 The El Faragy ‘postscript’ might usefully serve to open the ‘procedural’ debate in favour of a rule change. But it does no more. It lacks a sufficient basis in English common law and does not withstand analytical scrutiny. Thus for the aforesaid reasons we consider Ward LJ’s suggestions to be jurisprudentially heretical, irrational and frankly best ignored.

A lawyer for life?

Earlier this week a trainee solicitor complained to me about how their boss was bullying them. How they were being expected to work more than 60 hours a week and were given neither support nor recognition. Whilst I have every sympathy for the trainee I was forced to think of another lawyer suffering a more extreme degree of “bullying”. Chen Guangcheng, a blind lawyer in China was persecuted for exposing official abuses within his country. In 2005 Chinese officials initiated a forced abortion and sterilisation campaign against women in the Shandong province in part to maintain their “one-child” policy. Their actions were illegal and Chen put his head above the parapet to say so. However Chen’s comments were neither welcome nor tolerated. He was beaten, abused and put under house arrest. In June 2006 he was charged by local police for damaging property and organising a mob to disturb traffic (witnesses allegedly dispute this). In August Chen was sentenced after a two hour trial to four years and three months’ imprisonment.  There must have been a lot of damage to property. Tragically he is not alone. 

To such an extent that in 1990 the United Nations General Assembly endorsed the Basic Principles on the Role of Lawyers. It was drafted to assist states promote and ensure a proper role for lawyers in a democratic society. In many ways it was drafted to protect members of the legal profession against threats, intimidation, physical violence and, indeed, death. It is rather unnerving that such a principle, such a basic principle (sic) is in fact needed in a democratic and “free” world.

The Basic Principles cover a number of areas such as access to lawyers and legal services and qualifications and training, requiring Member States to ensure that their citizens have adequate access to lawyers; and further that such lawyers are “able to perform all of their professional functions freely without intimidation, hindrance, harassment or improper interference”.   So far so good, you would think. Also of some concern is Principle 23 which states that “lawyers like other citizens are entitled to freedom of expression, belief, association and assembly.” It is perhaps somewhat scary that the UN feels it is necessary to indicate that even lawyers should be entitled to basic human rights!

But as Neville Chamberlain found out to his costs in the 1930s a piece of paper even with the best intentions in the world does not always provide a suitable level of security or protection. 

In April 2006 three leading Nepalese lawyers, known for their criticism of the ruling monarch, King Gyanendra, were forced to disembark from an aircraft before the flight was allowed to proceed to New Delhi. The incident came less than 48 hours after Nepal's government had agreed before the international community in Geneva to respect the rule of law and rights of human rights defenders and fulfil its legal obligations.

Following the plane incident approximately 1500 Nepalese lawyers took part in a pro-democracy rally organised by the Nepalese Bar Association to protest against King Gyanendra and to demand the restoration of civil liberties. The rally was shattered as the police opened fire with rubber bullets and tear gas resulting in injuries and fatalities, followed by a number of lawyers being arrested. Unfortunately Nepal is by no way unique in its treatment of lawyers. 

In Algeria two lawyers have been charged with offences relating to the illegal transfer to detainees of “money, correspondence, medicine or any other unauthorised object”.  The illegal objects were nothing more than the minutes of the court hearing relating to a detainee’s defence and a simple business card containing the lawyer’s contact details. Is it truly coincidental that both lawyers are human rights activists who have spoken out against the current regime?

Every day in some of the most dangerous places in the world, lawyers risk everything. Risk everything by simply doing their job. For many there is more at stake than just money or career development. At risk are their lives and their liberty. Be it in the face of intimidation or harassment. Why? Perhaps because they believe in justice? Perhaps because they believe in international laws and human rights. Or even because they simply believe in the rights of man.

But without wanting to sound too clichéd perhaps more importantly it is because they believe that one person can make a difference.

Shadowing the Judges

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As a law student I was always enamoured by the power and prestige of Judges dispensing their wisdom on seemingly matters of life and death. The image bestowed of their wigs and gowns simply giving credence to that notion of the pomp and ceremony of some bygone Elizabethan age. When however I attended court for the first time as a trainee solicitor I realised that the world of the Judge was perhaps not as glamorous as perhaps Martin Shaw’s portrayal of Judge John Deed on the BBC would have us believe.

The world of the District Judge can be littered with the monotony of undefended divorces; small claim RTAs; applications for this, that and the other and oh yes heartbreaking housing possession applications.

But still it holds a fascination for me. The ultimate ambition for any lawyer, well aside from being a multi-millionaire partner in some high profile media firm in the heart of the West End. To be a Judge. Gosh wouldn’t Mum be proud?

And there on the wall at the Medway County Court stood a poster saying “Your Country Needs You”, well alright that was not the exact phrase, but it did ask whether I wanted to “Shadow a Judge”. My first thought was that this was some Government initiative gone mad. The Prime Minister had finally flipped (I make no comment) and wanted all lawyers to join MI5 and follow the Judges, those agent provocateurs and report on their misdemeanours. And to think the Times Law Report does a pretty good job of that every day.  As I looked forward to my Spooks training I read the rest of the poster and a statement from Lord Falconer who gave a slightly different spin on what they were looking for: -

“Our society needs a talented and diverse judiciary. DCA is keen to encourage all lawyers to think about the prospect of a judicial career and to learn what it might mean. Women, minority ethnic and disabled lawyers are currently under-represented in the judiciary. The Judicial Work Shadowing Scheme gives lawyers the opportunity to see at first hand what judges do, as well as discuss what it is really like to sit judicially. Why not spend a few days shadowing a judge? It could help you make an informed decision as to whether a judicial appointment is really for you. I recommend the Scheme to you wholeheartedly”

Well with such an invitation from so prominent a lawyer as the Lord Chancellor how could I refuse?

The scheme, which has been running officially for six years, allows solicitors and barristers in England and Wales to spend up to five days observing the work of either a Circuit Judge, District Judge (civil) or District Judge (magistrates’ court) both in and out of court. The scheme, which is administered by the Department for Constitutional Affairs, seeks to give those who may one day seek judicial appointment the opportunity to see what the job is really like. It allows an opportunity to see what a Judge’s main duties include, from preparing for trial, case management, presiding over court proceedings, hearing actions, sentencing, determining application and giving judgments.

Informal work shadowing has been arranged on a personal level at various courts and with various Judges for a number of years on an ad hoc basis. The scheme is free of charge but you must of course cover your own travel and expenses. Care should also be taken to minimise any conflicts of interest as it would not be too appropriate (to say the least) for someone to shadow a case where his or her firm was representing one of the parties.

I completed the form (was dead easy) and a few months later I turned up at my local County Court to shadow the resident District Judge. It is a rather odd experience to be taken into the private office of the local District Judge, reminiscent perhaps of a visit to the Headmaster whilst at school. The cane however being supplanted this time with a cup of tea and a sticky bun. And here I was sharing a cosy chat with a Judge who to my mind had victimised (well ignored) me for years. He had refused my applications, questioned my arguments and never ever given me costs. Yet here we were chewing the fat over his cases for the day, his thoughts on changes in the law and why I might (well one day) want to become a Judge. It was illuminating. The establishment had opened its doors to little old me. My mum would have been over the moon.

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I began to realise that resident Judges are more than just Judges; they have an interaction with the court staff, which borders on a management role at a medium sized business. This would range from their involvement in understanding why a radiator was not working in Counsel’s robing room to a letter from an irate solicitor questioning the ability and birth of a court worker. There is a fair chance that the Judge will see any rude/sarcastic/unhelpful letter; or equally hear about how a lawyer presented him or herself on the telephone. It is not a particularly good idea to shout at the court clerk or usher, as the reality is that that Solicitor’s reputation might well be marked the next time he is in front of that Judge. Judges it would seem have very long memories and seemingly talk regularly to their fellow Judges either via the Internet or at numerous seminars that they attend around the country to share knowledge and update their legal understanding (and I imagine swap gossip). Note to myself never berate the court staff again. Even if they are being difficult!

The highlight of the event however was sitting next to the Judge in court. Not on the bench, so to speak but a little away and on a different level (so as to emphasis the distinction) facing the advocates. This appears to give the impression that the advocates presenting their cases are presenting their cases to you alone. It is easy to get caught up in the moment and nod at the pleasing arguments and smile at those, which are a little more desperate. You almost have to shy away at times when the advocates are staring at you hopefully, trying to convince you of their arguments; trying to catch your eye with an obsequious smile.

If the Judge is not with them, then maybe you are? But unfortunately my thoughts hold no value whatsoever in the decision making process (well not yet anyway).  But the real value of this exercise is that you get the opportunity to watch other advocates fighting it out in a real situation. You get the opportunity to objectively assess what works in persuading you of an argument (and of course the Judge) and what does not work. The better advocates are those who know their papers, know where to find things quickly in their papers and are on top of the brief. Sniffing does not go down well. Nor does talking too fast or too quietly. Practice not only breeds confidence, but also professionalism.

You also get to see the benefit of properly preparing the papers which are sent to court. As a trainee spending hours undertaking trial bundles I always thought that this process was a real pain. Pagination, pagination, pagination!!! How many files? Could anything be duller? But if you are the Judge faced with loose papers, pages missing or no file at all, then you can take an early dislike to someone and perhaps also their case. Officially this would not factor in their decision making process, but in reality, you do the maths.

At the end of the week, I was exhausted. It felt for the first time in a long time that I had been involved in real law, using and really understanding that law I had learnt so meticulously at Law School.

I found the whole experience not only refreshing but enlightening. I personally think that as a result of the shadowing experience I have become a better lawyer (my Senior Partner may of course take a different view). I listen better. I think more about what I will have to do, not only to advise my client, but to win a case in court.

In my opinion the shadowing of a Judge should be compulsory and studied by all lawyers during their training contract or indeed pupillage. If I have learnt only one thing it is that Judges are indeed also human (well most of them). In recent years I have on occasions questioned their origins. They have a real passion with the law and in finding as best they can justice.

Finally, will I become a judge? For now, well I think I will keep my own counsel.

If you like more information on the shadowing scheme then phone the DCA on 0207 210 1681 or email them at workshadowing.judicialgroup@dca.gsi.gov.uk

Mitchell : The Court of Appeal gets cold feet?

Craig Barlow and Jason Hadden consider the Court of Appeal’s recent decision in Denton v White clarifying the guidance it gave in Mitchell

Introduction

Practitioners will be conscious of the ridiculous practice that ensued in the lower courts following the “guidance” dispensed by the Court of Appeal in Mitchell v News Group Newspapers [2013] EWCA Civ 1537 as to the operation and application of CPR Part 3.9 “Relief from Sanction”.

In many Courts, the tiniest infraction of either a CMC direction specifying a time for an act to be done (even if it wasn’t an unless order) or the breach of a time set forth in a CPR Rule or Practice Direction (even if no default sanction applied) was regarded as engaging the “relief against sanction” provisions with generally lethal effect.

Mitchell was eagerly embraced by a streamlined Civil Court system crippled by spending cuts and burgeoning cause list. The message conveyed in Mitchell was that there was unmistakable. There was a “New Sherriff in Town”. Delay would not be tolerated. Strict adherence to the modern CPR procedures would be ruthlessly enforced.  Defaulters would effectively lose their place in the queue for the greater good and like a game of ‘snakes and ladders’ they would have to start all over again. They would pay their and the other side’s costs and if they could not either through the exigencies of finance or statutory limitation, then tough luck.

‘Justice’ had lost its talismanic value and the criterion was whether the Court had given them the opportunity of access to justice. It wasn’t three strikes and you are out; it was one strike and you are out. A new justice of finality, well subject to the odd appeal and the potential to reissue.

Mitchell, arrived in the month prior to lawyers completing their CPD points for 2013 and quite rapidly the above interpretation of Mitchell was transmitted through the legal profession like a plague.

Denton v White

In Denton v White [2014] EWCA Civ 906, the CA was confronted by conjoined appeals in Denton, Decadent and Utilise.  What was common to all three appeals was that the time frame specified in a CPR provision, practice direction or Order had been exceeded and that failure was delivered with a specified sanction.

In Denton, additional witness statements were served a year after the period specified and thus the sanction in CPR Part 32.10 applied “…may not be called to give evidence unless the Court gives permission.” Nevertheless, the judge gave permission and the trial date was vacated.

In Decadent, a litigant was subject to an “unless order” striking out their case unless court fees were paid on a given date. The fees were not paid on time., but a month later. The court refused relief from sanction.

In Utilise, the litigant’s costs budget was filed 45 minutes late and the litigant had not notified the Court of the result of negotiations, as so ordered. The lower Court refused relief.

The Outcome

The CA allowed all three appeals holding that the judges in each had not correctly interpreted or applied CPR Part 3.9 and the guidance in Mitchell.

As Lord Dyson MR opined at paragraph 3 of Denton:
“… Mitchell has been misunderstood and is being misapplied in some courts. It is clear that it needs to be clarified and amplified in certain respects.”

At paragraph 9, the CA went on to remind practitioners that the costs budget in Mitchell had been filed 6 days late, 1 day prior to the Case Management Conference scheduled to consider those costs budgets, the delay had caused the CMC to be adjourned and disrupted the Court’s List. The automatic sanction engaged and that required the defaulter to obtain relief from sanction. Thus, explains Denton, the real reason the appeal in Mitchell was dismissed was that the lower court had correctly applied CPR 3.9.  Since it was a matter of reasonable discretion the CA could not intervene.

The CA pointed out that CPR Part 3.9 (1) is layered and that on its literal construction:-
(1) The Court’s first task is to identify the Rule, Practice Direction or Court order imposing the sanction;

(2) Next the Court considers all the circumstances of the case and the need-

a.     For litigation to be conducted efficiently and at proportionate cost; and

b.     To enforce compliance with the rules, practice directions and orders.

But as the CA then explained a more nuanced approach was needed.

The CA was concerned that CPR 3.9(1) was not being pragmatically or uniformly applied. Worse, some judges had got hold of the wrong end of the stick entirely and adopted the stance that unless (i) a default could be characterized as “trivial”; or (ii) there is some good reason for the default, the Court was bound to refuse relief.  Denton specifically castigates such a judicial mindset and unequivocally eschews it as wrong. 

The Revised Guidance

It is from paragraphs 34 of Denton onwards that – depending upon one’s disposition towards cynicism– the CA either re-writes the Mitchell guidance or as Lord Dyson MR would have it “clarifies and amplifies it.” It does not particularly make any difference provided that the CA guidance is properly understood and applied. The 9 bullet points to be extracted are these:

1.     What Mitchell sought to explain was that factors (a) “efficiency and proportion” and (b) “enforcing compliance” in CPR Part 3.9(1) are of considerable weight. They were not to be casually disregarded. They were designed to engender a cultural change from the old lax approach to Court timetables. 

2.     But even when giving those 2 factors their significant weight, the Court must to consider “all the circumstances of the case” when exercising a discretion to grant or refuse relief from sanction.

3.     The rules are not ‘trip wires’ and compliance with them is not an end in and of itself. The prime objective is to secure the litigant’s compliance with them because that is the route to the efficient, proportionate conduct of litigation. By these means the Court can deal with cases fairly and justly.

4.     A fundamental objective is to make Case Management Directions that were realistic and achievable. The Court should be careful about making “unless orders”. Such orders are designed to coerce compliance and are best used to bring about efficiency and costs savings at appropriate stages, if the defaulter persists.

5.     A key factor when considering relief from sanction is the need to avoid the waste of the litigants and the Court’s resources with adjourned hearing and broken trial windows fixtures.  Where a hearing or trial window has been set and non-compliance imperils the same, the weight and importance of factors Rule 39.1(a) and (b) magnify. Depending upon all the relevant circumstances including promptitude, explanation,  previous history of compliance, conduct etc the Court will have to balance the competing factors.

6.     Nevertheless, in the vast majority of situations where one litigant has slipped in compliance but proposes to appropriately remedy it, the Court expects the other litigants to be co-operative and consent to an extension of time or relief from sanction.

7.     The Court will discourage contested applications for extensions of time or relief from sanction. In general, these should usually be disposed of by consent. See Rule 3.8(4).

8.     One litigant is not by a side wind to gain a tactical advantage from the other’s default by refusing to co-operate. A party’s lawyers should think very carefully before advising their clients to adopt a strategy of non co-operation. The litigants are required to assist the Court to further the over riding objective. Court will robustly assess a party’s unreasonable refusal to agree to an extension of time or relief from sanction and visit such a party with appropriate costs orders or record its reasons for the use of the trial judge or costs judge at a later stage.

9.     Where contested, the Court should ask whether the default is significant or serious in the context of the litigation. The answer will usually be obvious.  If it is not significant or serious, an extension/ relief should ordinarily be granted without the need to perform any balancing of factors. Where it is not obvious, the Court ought then proceed to weigh and balance in accordance with the above.

Conclusion

The word “trivial” as a rule of thumb test, has been discarded in favour of not “significant or serious”.  The core policy objectives the CA seeks to pursue with the application of Rule 3.9 is made explicit in Denton. Arguments about extensions of time / relief from sanction are to be discouraged unless the failure imperils a hearing date or trial fixture. The Court emphasises a more co-operative approach between litigants to assist the Court in managing the case, steering it step by step and keeping it on track to the trial date. The shift in emphasis between Mitchell and Denton is that the CA does not expect the litigants to eat up the Court’s resources in squabbles about time and compliance if the same can sensibly be resolved between them.  Perhaps the clue to this judicial shift is that the Law Society and Bar Council were invited to intervene in these appeals.  Its possibly indicative that the Civil Appeals Office detected a worrying trend in appeals being lodged. Its most unusual that within 6 months of Mitchell three conjoined appeals involving the application of Mitchell reached the CA. All lower Court decisions in issue. All purporting to apply Mitchell. All of them reversed. 

Craig Barlow is a barrister at Ely Place Chambers in London
Jason M Hadden MBE is a barrister at St Ives Chambers in Birmingham