A single judge and a fair #child sex abuse inquiry
In his thoughts on the subject of a chair for the child sexual abuse inquiry (at http://scepticalthoughts.blogspot.co.uk/2014/12/a-judge-led-inquiry.html) Jonathan West looked at the issue of whether the inquiry should be led by a judge. He confronted immediately the negative argument put by so many: that it cannot be an ‘establishment’ figure; and explained his conclusion that it should be a Family Division judge (or ex-Family Division judge ie now in the Court of Appeal or Supreme Court).
Jonathan’s analysis is brilliant. I add only one dimension to it: bias as an aspect of fair decision-making. And it was my concern with ‘bias’ which is the point at which I became truly aware of what was going on in the child sexual abuse inquiry world. I started, as I remain: a family lawyer (with eg no personal CSA experience, no expertise in criminal trials or journalistic investigation on this subject) with a profound concern for family law reform.
‘Bias’ and fair hearing
The concept of fair hearing is basic to our system of administrative law and of justice. A decision-maker must hear both side of an argument or case before s/he makes a decision (the same goes for an argument between two small children); and all of us must admit to your biases (‘declare an interest’, is another way of putting it). All of us are biased. For example I am sceptical of politicians (especially Tories), many journalists, anyone who accepts an ‘honour’ and people who advertise their football club allegiance (I am not interested in professional football: another bias?). I positively dislike all that USA stands for (in my eyes); but some individual Yanks I may get on with….
Bias is inevitable, whoever we are and whether or not we are ‘members of the establishment’ (an almost meaningless term – since no-one seems able to define it). Jonathan discusses the term briefly. The issue is not whether bias is there. It is what the individual biases are; and how they influences the decision-maker. That is to say: does it get in the way of making a fair decision? In my blog on ‘Reflections on Bias’ (https://dbfamilylaw.wordpress.com/2014/09/06/reflections-on-law-of-bias/ ) I refined this a little further: the law distinguishes between where a decision-maker (eg civil servant, judge or panel chair) is deemed to be always biased (eg a financial or family interest); and one where s/he are likely to be regarded as biased – ‘perceived’ bias.)
It is the circumstances of the bias which matters. I once had a case where a Mr Channon disliked Freemasons: he asked a judge, who had just decided an important preliminary point in his favour, to ban Freemasons from dealing with the case further. The judge refused – he had no power to do so; but said he was a Freemason, anyway. Channon was a brilliant physicist from a rough working-class back-ground. After a 5-day trial before a white public-school judge he successfully sued his former solicitors (I don’t like Freemasons either, by the way). Channon’s case ended up, on appeal (also successful to him), before ‘Judge Harry Potter’: the Court of Appeal judges were Lords Justice Judge, Henry and Potter (Channon v Lindley Johnstone  EWCA Civ 353 – http://www.bailii.org/ew/cases/EWCA/Civ/2002/353.html ). Bob Channon hated everything about the establishment (but because of his engineering interest in flight and of her interest in land-mines, he had contacts with Princess Dianna) but a series of ‘establishment’ judges found for him whilst I dealt with him.
‘Bias’, a fair trial and child sexual abuse inquiry
So what has rights to a fair trial, bias and so on to do with an inquiry? At the end of the inquiry process a report must be made to the Home Secretary. That report is a patchwork of decisions: findings of fact; probably assumptions galore (after this passage of time); assertions of failure and wrongdoing; and recommendations for the future. Each of these decisions will require the weighing up of two or more options (often almost instinctively) by the decision-maker.
An inquiry is part of our administrative law; and like the common law, administrative law procedure (‘procedure’ is the means whereby a decision or result is achieved) is based on the idea of fairness. And fairness requires that both sides of an argument – audi alterem partem – be heard before a decision is made.
Impartiality – ie freedom from bias – is the most important component of procedural fairness; for a decision-maker who is in fact biased in some relevant way cannot by definition give a fair decision.
Bias is a relative term. As a matter of psychological fact, total freedom from all bias is never possible. The importance is that bias be recognised and, where it is relevant, that it be admitted to by the decision-maker. A judge who knows a witness in a case, must say so as soon as s/he knows of it. Fiona Woolf failed to admit her potential for bias, immediately or at all. To me she was rotten from the start. She should have said openly at the point of appointment what were her biases (and the extent to which she was not competent to do the job, a slightly different point). And she should never, ever, have allowed Home Office officials to draft her letter (the Home Secretary should know this).
A statutory inquiry
Jonathan explains why he says that there should be a statutory inquiry (Inquiries Act 2005), chaired by a single chair with assessors (which must be the right answer). He says why he thinks the chair needs to comply with the following:
(1) ‘Needs to have the respect of all but the most anti-establishment survivors.
(2) ‘Needs to know enough about how inquiries work to be able to effectively wield the powers of a statutory inquiry, and so get the evidence needed for informed recommendations.
(3) ‘Needs to have [professional] experience of abuse, its effects on victims, and on administrative arrangements designed to minimise it.
(4) ‘Needs to have sufficient stature that radical recommendations will get taken seriously by government and other bodies when the report is issued.’
He expands (3) further:
In my view, it is not enough to have prosecuted, defended or acted as a judge in criminal cases where the defendant was charged with child abuse crimes. We already know that abusers ought not to abuse, this is trivially true. The inquiry will be looking into why non-abusers didn’t take evidence of abuse seriously, and so let abusers get away with it. In doing so, these non-abusers have mostly not committed any crime.
He then goes on to make a point which seems to me to be lost by so many when they look at this inquiry:
[The inquiry is] going to have to look at institution procedures, organisational cultures, how and why people don’t feel able to come forward with concerns, and what needs to be done to change this. So we will need somebody who has been involved in this aspect of child protection….’
He concludes that a senior family judge – he suggests Court of Appeal or Supreme Court (and I agree) – is what is needed. And that judge needs the ‘the confidence of the survivors’.
The confidence of survivors is only part of the first criterion. I would say this comprises also what is asserted by the remaining three: that we all – posterity that is – seek a person who can put forward what was lacking from Lord Carlile’s inquiry into Ealing Abbey and St Benedict’s School (to which Jonathan refers); namely the ‘radical recommendations’ referred to in Jonathan’s (4).
The second phase of this inquiry must be to put forward fully respected could be to try to ensure that nothing as institutionalised – or in people’s homes domestic as this happens again. This is where a competent and experienced family judge comes in.
Radical recommendations: the pool of judges
‘Others should be in a position to know whether any particular person meets all these criteria described’ says Jonathan:
… the field is fairly narrow, there are not that many people in the entire country who have the necessary knowledge and experience. But I think that the number of possible candidates who meet all these requirements is greater than zero, and we can therefore move on and finally set this inquiry in motion.
I would say the pool is around a dozen: two in the Supreme Court, five in the Court of Appeal and five in the Family Division (ie High Court judges). All are ‘establishment’; but if anyone imagines judges to be glad-handing high-livers dining nightly with City and Government mafiosi, they really should think again. The whole point of the judiciary is that it is separate from the Government (the executive and legislature: remember separation of powers?) It is a judge’s job to know when bias is applicable to the circumstances and to any issues they must deal with.
Since it has taken six months not yet a to find a chair – and only a long retired too old judge has so far been floated for a couple of days – why do we not work on a lowest common denominator basis. We could give the job to a judge whose full-time job it will be. They are paid to recognise bias in themselves. And such a judge might yet do a job akin to that of the Cleveland Report over 25 years ago; and produce a report with ideas for child law reform fit for the twenty-first century – I can think of a number of first class candidates in the pool I mention above.