Transparency and judicial bias – a review in 2019

20160419_173301Common law ‘transparency’

 

At common law and in general law usage the term ‘transparency’ has three principle meanings:

 

  • It is of the essence of the open justice principle (and is used by family lawyers to refer to the wearing down of privacy presumptions under Family Procedure Rules 2010 r 27.10);
  • It is essential to a fair trial: that parties disclose (ie tell other parties) what relevant documents they have and that they tell the truth in evidence they give; and
  • A fair trial is likely to be hindered if not made impossible if any judge is not transparent as to any bias – ‘actual’ or ‘presumed’ – to which the judge may be subject.

 

It is the last which calls for review in 2019, twenty years after the leading case which still provides a non-specific categorisation of circumstances which may give rise to bias. This case – Locabail (below) – must be looked at first; and then it must be looked at through the spectacles of Lord Hope’s ‘fair-minded and informed observer’.

 

In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 QB 451, [1999] EWCA Civ 3004, [2000] 1 QB 451a specially constituted Court of Appeal (Lord Bingham CJ, Lord Woolf MR and Sir Richard Scott V-C) considered bias at common law. They discussed it generally, and then in respect of five cases. They explained the concepts of actual bias (eg the judge who has shares in a company whose case comes before him: as a matter of law the judge may not try such a case).

 

‘A real danger of bias’

 

Actual bias, which automatically disqualifies a judge, must be contrasted with there may be a ‘real danger of judicial bias’. The tricky aspect of that is that it is the judge who is arbiter of his or her own bias as alleged in any application to recuse the judge (for the judge to take him- or herself off the case).

 

In Locabail the Court of Appeal said bias could not ‘ordinarily’, be expected to apply on the basis of (at [25]) the following:

 

  • the judge’s social or educational or service or employment background or history, nor that of any member of the judge’s family;
  • previous political associations;
  • membership of social or sporting or charitable bodies;
  • Masonic associations;
  • previous judicial decisions;
  • extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers);
  • previous receipt of instructions to act for or against any party, solicitor or advocate engaged in a case before him;
  • membership of the same Inn, circuit, local Law Society or chambers.

 

That was nearly 20 years ago. Barrister’s chambers have become much more commercial and – perhaps? – competitive. Many solicitors’ firms are massively larger. The partnership structure anticipated by the Court of Appeal in 1999 is rarely applicable now. The Court of Appeal made it clear no list could be definitive; but is not the Locabail list due for review in 2019, and in the light of the next common law development: what might be the views of the fair-minded and informed observer?

 

‘Fair-minded and informed observer’

 

In Helow v Secretary of State for the Home Department [2008] UKHL 62, [2008] WLR 2416 Lord Hope proposed the concept of the fair-minded and informed observer in the following terms:
[1] My Lords, the fair-minded and informed observer is a relative newcomer among the select group of personalities who inhabit our legal village and are available to be called upon when a problem arises that needs to be solved objectively….

[2] The observer who is fair-minded is the sort of person who always reserves judgment on every point until she has seen and fully understood both sides of the argument… She knows that fairness requires that a judge must be, and must be seen to be, unbiased. She knows that judges, like anybody else, have their weaknesses. She will not shrink from the conclusion, if it can be justified objectively, that things that they have said or done or associations that they have formed may make it difficult for them to judge the case before them impartially.

[3] Then there is the attribute that the observer is “informed”. It makes the point that, before she takes a balanced approach to any information she is given, she will take the trouble to inform herself on all matters that are relevant. She is the sort of person who takes the trouble to read the text of an article as well as the headlines…. She is fair-minded, so she will appreciate that the context forms an important part of the material which she must consider before passing judgment.

 

One example of a change since 1999 will suffice. In Locabail the Court of Appeal explained a distinction they perceived between barristers and solicitors. Of the bar they said:

 

[20] When members of the Bar are appointed to sit judicially, whether full-time or part-time, they may ordinarily be expected to know of any past or continuing professional or personal association which might impair or be thought to impair their judicial impartiality. They will know of their own affairs, and the independent, self-employed status of barristers practising in chambers will relieve them of any responsibility for, and (usually) any detailed knowledge of, the affairs of other members of the same chambers….

 

They explained what they saw, then, as the difference in practice for solicitors:

 

[20] … The position of solicitors is somewhat different, for a solicitor who is a partner in a firm of solicitors is legally responsible for the professional acts of his partners and does as a partner owe a duty to clients of the firm for whom he or she personally may never have acted and of whose affairs he or she personally may know nothing. While it is vital to safeguard the integrity of court proceedings, it is also important to ensure that the rules are not applied in such a way as to inhibit the increasingly valuable contribution which solicitors are making to the discharge of judicial functions.

 

Fair-minded and informed observer and Locabail

 

I shall assume all that was right in 1999. Is it still how a fair-minded and informed observer might see things in 2019? Barristers are highly collegiate and are very much a lawyer’s in-group within the much wider legal profession. Would a recently appointed judge – for all his or her ‘independence’ while in chambers (what barristers call their offices) – be able to be unbiased where a former fellow member of chambers is involved in a finely balanced case; or where the reputation of a solicitors’ firm is in issue where he received regular instructions from that firm shortly before appointment?

 

It matters not what I think. What view might the fair-minded and informed observer take? Might she perhaps think this relationship of a judge with recent close colleagues be of concern when a judge’s impartiality is in issue? She might say that in 2019 the view of the Court of Appeal needs review; that it is a little complacent even on this point.

 

By contrast she might think the restrictions on solicitors and the distinction drawn by the Court in 1999 is not apt in all cases in 2019, especially of much larger firms where there was no contact between the solicitor judge and another member of the same firm. To suggest that barristers somehow have some special quality of ‘independence’ but solicitors do not, she might say, was unreal, needlessly discriminatory, even.

 

We lived in kinder times in 1999 (pre-Iraq war, and the Twin Towers were still standing); and it was long before the intolerance and xenophobia of Brexit. The coming into effect of Human Rights Act 1998 was still a year away. Are we still entitled to be as tolerant of Masonic links as was the Court of Appeal? We are more aware of the corrosive effects of judicial bullying. Does any of this need to be reflected in a Locabail para [25] type of list?

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Contempt of court: ‘publication’ and children proceedings

20160422_155058The tentacles of court contempt

 

Administration of Justice Act 1960 s 12 is about ‘publication’ of information where it is part of court proceedings which are held in private. The most obvious of these for the family lawyer is children proceedings; but a few days ago the President of the Family Division, Sir Andrew McFarlane, referred to the long line of cases which run indirectly from the main common law source of Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; and which say that if publicity would destroy the purpose of the litigation (eg patent cases or anonymity claims) privacy may demand that press freedom be overridden (Venables & Anor v News Group Papers Ltd & Ors [2019] EWHC 494 (Fam), Sir Andrew McFarlane P) especially at [42]. It is a line of cases which is reflected in s 12(1)(d) and (e) (below).

 

This post concentrates on children proceedings (s 12(1)(a)). I had hoped to be able to set out a list of rules as to what s 12(1) means. It is not easy. There is no tidy statute or official guidance. You have to string together a series of case law, touched on here. And from that case law you distil the contours of the legal principles engaged; or you define the extent of contempt law’s tentacles.

 

If the court says you’ve breached s 12(1) it will lead to you being found in contempt of court. If that happens, you could – in theory – go to prison. At the least you could be required to pay the costs of the lawyers for the party (or the Attorney-General) who applies for your committal. In the updated version of s 12(1) says (in full):

 

12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—

(a) where the proceedings— (i)relate to [wardship and other such children cases]; (ii)are brought under the Children Act 1989 or [in adoption proceedings]; or (iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;

(b) where the proceedings are brought under the Mental Capacity Act 2005, or [where reference is authorised to the First-tier Tribunal [etc] or the county court;

(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;

(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;

(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.

 

Unhelpful negative drafting

 

Section 12(1) is an example particularly unhelpful drafting. It is in a negative style, beloved of some Parliamentary drafters. Something won’t be a contempt of court, unless it is in the list in s 12(1); but does that mean, if it is in that list – eg s 12(1)(a) and children proceedings – it positively will be a contempt of court. Yes, ‘probably’ is what you must assume. But ‘probably’ is not a fair basis for defining the possibility of going to prison. That is what makes it so unfair to journalists of the likes of Louise Tickle who try to expose what is going on in and around England’s secret children courts.

 

However, that ‘probably’ is not the end of the story. This post is an attempt to identify the tentacles in the secrecy with which the subject is often shrouded.

 

Publication of information: the Surrey ward, her parents and the Daily Telegraph

 

If you breach s 12(1)(a) (children cases in private) by ‘publication of information’ – which can be by journalists or other media; but it could be you or me who publish on Twitter, Facebook or other social media – then you might, if you do it often enough, end up in prison for contempt of court. But you can only be found guilty of contempt if you ‘publish’ – ie newspapers, twitter-feed etc – if you know you are breaching s 12(1)(a) (ie you know the proceedings are ‘private’).

 

Guilty knowledge is the law, but you can’t know that from a reading of s 12(1). You have to go back to a 1976 case when s 12was considered for the first time at Court of Appeal level (Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA). Re F had a classic 1970s cast: a fifteen year old Surrey girl who was warded by her parents; she was ‘in love’ with 28 year-old drug-taking hippy car thief (who ‘wore his hair long’, said the bald bewigged Lord Denning); she was assisted by a broad-minded social worker (who admitted her to a hostel and thought she should go on seeing her hippy); all topped off by the Daily Telegraph. Surrey/Daily Telegraph values against the still ‘swinging’ world of 1970s values, perhaps?

 

This cocktail of social and press attitudes was taken on by their lordships and provided the setting for a review of what s 12 – especially s 12(1)(a) – means. A side point: the editor of the Telegraph at the time who, had appealed from the earlier High Court contempt finding, was Bill Deeds who – for Private Eye readers of the 1980s – will know was ‘Dear Bill’ with whom ‘Dennis Thatcher’ corresponded. The applicant Official Solicitor (ie prosecuting the contempt application) was represented by a very junior Lord Wilson (now in Supreme Court) and lead by Lord Justice Waite (as neither of them then were); and Leon Brittan (later a minister in Mrs Thatcher’s cabinet) represented a local paper which was also involved.

 

‘Proceedings’ and Ford Maddox Ford

 

For the person who publishes (journalist, Twitter-person etc) the next question is: what, in context, is meant by ‘proceedings’. In part this is answered by a late the nineteenth century case of Re Martindale [1894] 3 Ch 193, North J. A ward, Elsie Martindale, eloped with the novelist Ford Maddox Ford. She married him as Hueffer which was his real name then and till after the First World War; and as he is known in the case. Hueffer told a journalist friend about the wedding and the wardship. ‘He allowed, I am sorry to say’ explained Lord Justice Scarman in Re F, ‘an element of fiction, with which he was, of course, professionally familiar, to creep into his account of the proceedings’.

 

Talking about the fact he had married a ward was fine. However – and this was the contempt – what was finally reported in the newspapers referred to what had happened in the judge’s room (in ‘chambers’, now ‘private’). That was not fine. To report on the marriage, or of the 1976 ward and her hippy boyfriend, was not a contempt; but to report without permission of the judge what had been said or done in court sitting in private (‘chambers’) was, on the facts of the case, contempt. Hueffer and three of the newspapers which published the story (but not the journalist) were liable.

 

In modern terms, because a child is in care, does not mean nothing can be said publicly about the child (eg that she is in a successful football team or has swum on Christmas day, if that is newsworthy); nor do special arrangements have to be made because the police want to interview a ward about an alleged crime (Re a Ward of Court [2017] EWHC 1022 (Fam), [2017] Fam Law 725, Sir James Munby P). Involvement in court proceedings – wardship or any other – does not give the child a special status as against other children: ‘The existence of wardship does not give the ward a privilege over and above other young people who are not wards’: Lord Denning the Master of the Rolls said in Re F.

 

On the other hand any report on the proceedings in which that child is involved raises quite other issues; and will generally engage s 12(1).

 

Rules on what is contempt?

 

In Re F, Scarman LJ extracts legal principle from the cases he had mentioned in his judgment. He suggests guidelines for dealing with s 12(1)(a) cases (applicable to all children cases, not just to wardship) as follows:

 

  • If a court decides to hear a wardship case in private (as will almost invariably be the case, and as with Children Act 1989 proceedings) it will be ‘a contempt of court to publish an account of the proceedings unless the judge expressly authorised publication’;
  • Any outcome of the proceedings or the court’s order can be published, unless the court specifically says not;
  • It is not a defence to say that you did not intend to commit a contempt of court; but, he added –
  • You were not guilty of contempt if you did not know that what you said or published contained information relating to children proceedings which were held in private; or that, as in Re F, you didn’t know the wardship order was still in force.

 

Scarman’s rule (4) is likely to be to only a narrow category of case: most people know, and certainly most professional journalists know, that proceedings about children are private and that they may not be reported upon. However, as Scarman LJ points out, wardship can be used for publication of a child being hidden away (as can Twitter in 2019 per Mr Justice Williams). The same is the case, very occasionally, in Children Act 1989 proceedings. Wardship can be a short-term remedy – as the journalists and newspapers genuinely thought was the position in Re F: they thought the girl was no longer a ward. If the wardship has been discharged, the s 12(1) restrictions ease.

 

‘Proceedings’ and what is not being said; and what of children who want to publish?

 

Anyone seeking to publish must concentrate on what is ‘proceedings’ – ie what goes on in court – and what is not. It is not ‘proceedings’ if it is what local authorities, police or hospitals are doing in relation to children, unless there are court proceedings.

 

A more interesting question may be what is not being said. For example, what about where a child wants to tell her story? There is clear law which says she or he can do so after the hearing (so long as other family members are protected: Re Roddy (A Child)(Identification: Restriction on Publication) [2003] EWHC 2927, [2004] 2 FLR 949 Munby J); but what happens if a child want to talk about proceedings which are still continuing?

 

Suppose the child – in the proceedings – says she is not being listened to? Suppose the child talks to journalists? And where does a parent stand who wants to talk to the press about (say) that parent’s view that the child (his or her child) is not being listened to? Where has the law in 2019 got to on these questions? Strictly in relation to a child’s views this is an open question (save for Roddy and one or two other cases). It is an important question – for another day – when, in many children courts, many judges are not moving forward on the subject of listening to children, as the law now requires them to do.

Child rights: politics or law

20160924_142217

Judicial review and the ‘political arena’

 

In R (Wilson & ors) v The Prime Minister [2019] EWCA Civ 304 (4 March 2019) Hickinbottom Cave LJ recently commented of anti-Brexit campaigners and their failed attempt to appeal against a judicial review application, that the courts cannot be ‘concerned at all with the merits of leaving or remaining in the EU’. In R (Webster) v Secretary of State for Exiting the European Union [2018] EWHC 1543 (Admin), the court noted that Parliament had given the Prime Minister the power to give notification of withdrawal and a discretion as to when to do so. Any claim in relation to it ‘must be focused exclusively on the question of whether the Respondent has acted in accordance with the law’. The courts, said the Court of Appeal, were not concerned at all with the merits of leaving or remaining in the EU.

 

OK, but when does a judicial review application cease to be political so the court – on Wilson lines – will find it a matter of law and not of politics? That is a massive question, and depends on an appropriate definition of ‘politics’. For now this post is limited to the politics of children’s rights and their application in administrative law.

 

An inescapable fact is that judicial review is designed to challenge the government In the field of rights law that is obvious; and children’s right is no exception. A challenge on procedural ground may have little by way of politics to it; but as soon as you start to say a decision-maker on behalf of a government minister has acted unlawfully (see eg references to Courts Act 2003 s 75(5) later) or that a decision-maker is behaving unreasonably, then you are straying into politics. The closer the government minister is personally to the decision – one thinks immediately of the Home Secretary and Shamina Begum’s late child – the more the judicial review application becomes political.

 

I well remember a child support judicial review where a permission application was adjourned before Collins J. The case involved a non-resident parent (a father), Peter, who was overwhelmed by child support paperwork and whose second wife (Doreen) used to try to organise it. One day they were sitting at breakfast. Doreen opened a letter which told the reader – her – that Peter had recently fathered another child by another woman. It turned out the Child Support Agency had made this up; or muddled up two families.

 

The point at which I met them both Peter and Doreen were patching up the relationship which remained damaged after that Child Support Agency intervention; though there were other Child Support Act 1991 issues to resolve. The newspapers were interested in what had happened and the couple were invited to appear on television.

 

‘Go on get political’: Mr Justice Collins

 

Remarkably the only way to challenge figures given as arrears by the then Child Support Agency (now rebranded Child Maintenance Service) was – and still is, as far as I know – by judicial review (ie there is no appeals process which deals with arrears). Hence my appearance a few weeks later before Collins J. Something he asked me required me, I said apologetically, to get ‘political’. His reply? ‘Go on, do get political, Mr Burrows’….

 

He was no fan of the child support scheme. Of Child Support Act 1991 s 20(7)(a) (First-tier Tribunal appeals and factors the tribunal ‘need not consider’) he commented (in R (Starling) v Child Support Commissioners [2008] EWHC 1319 (Admin) (unreported)) that s 20(7) was ‘the most ill-drafted and obscure provision in the field of child support’ (at [36]).

 

Politics and judicial review

 

Personally, I cannot refer to subjects much wider than family law; though as the list below shows the palette is quite extensive. In terms of the family courts’ time and its resources substantial parts of the family lawyer’s work is concentrated in dealing with children law. Children law, by definition, has a variety of public (in the sense of administrative) law elements. These include:

 

  • Rights of children to be heard; which, where need be, may have to be enforced by judicial review since the rights extend to administrative decisions in relation to a competent child.
  • Legal aid (obviously and almost invariably); but how often is it granted for the less mainstream cases where people may really need the skills of a rights lawyer?
  • Court administration (especially equipment for vulnerable witnesses and court delays).
  • Appointment of Cafcass officers (this is often done unlawfully to the detriment of child’s rights; but family lawyers take no notice (and see Criminal Justice and Court Services Act 2000 s 12)).
  • Immigration and nationality (see eg Shamina Begum’s dead child: is that political?).
  • Housing (see recently R (JA and ors) v The London Borough of Bexley [2019] EWHC 130 (Admin) (1 February 2019), David Casement QC as a High Court judge).
  • Education and social services: secure accommodation and deprivation of liberty.
  • Local authority’s, care proceedings and Human Rights Act 1998 damages claims.
  • Adoption: the working of adoptions panels.

 

Child representation rules: ‘simple and simply expressed’; or truly ‘complex’?

 

One of the more glaring examples of family lawyers ignoring rights, is in relation to the rules under which we all practice. Start with the law which defines the powers (vires) of the Family Procedure Rules Committee which make the rules (Family Procedure Rules 2010) which govern how family proceedings are to work, namely Courts Act 2003 ss 75 and 76. It is enough just to look at s 75(5) to see how unlawful (ie wrong, illegal) many of these rules are. Section 75(5) says, beguilingly:

 

(5)Any power [which the rules committee has] to make Family Procedure Rules is to be exercised with a view to securing that—

(a)the family justice system is accessible, fair and efficient, and

(b)the rules are both simple and simply expressed.

 

Anyone – adult, child or local authority – who goes to court in relation to family breakdown, care or adoption proceedings needs to work within the parts of these rules which apply to a case; and for present purposes surely a child must know whether the child has a case at all? Logically, and in law, the rules should be ‘simple’, especially those which relate to representation of children in proceedings (ie FPR 2010 Part 16).

 

In fact the rules are written for lawyers in a style which was fashionable 25 years ago. The idea of children having ‘views’ which they might be entitled to express in proceedings which affected them was – then – a very new idea (as Children Act 1989 came in; and see eg Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA). The concepts the rules try to deal with – intertwining private law case and care proceedings – are truly a muddle. Experienced judges find them ‘very confusing’ (to quote a 20+ year appointed family judge).

 

But imagine you are thirteen year old (say), or a little older, who has been with foster parents in care. You want to go back to live with your parents. How do you do this? What rules do you follow? Is there anyone who will help you? These questions are real. It comes from a case in the Court of Appeal from not so long ago, a case called Re W (A Child) (Care Proceedings: Child’s Representation) [2016] EWCA Civ 1051, [2017] 1 WLR 1027.

 

Fiona (not her real name) was sixteen. She was living with foster parents but she wanted to go home. The social workers did not agree with her. Eventually her case got to the Court of Appeal where Lady Justice Black (now Lady Black in the Supreme Court) called the rules which someone like Fiona has to negotiate are of ‘complexity’. Complex they were for a 30+ year experienced highly intelligent children lawyer. So what chance a non-lawyer; or a bright but not trained 14 year old?

 

Oh and even then, by the way, I think Black LJ and the lawyers in court with her all got the law muddled up, if you read her judgment. There was no requirement – in law – for the court to appoint a Cafcass officer in the first place: the recovery order to which Fiona was subject was not ‘specified proceedings’ which would have demanded a children’s guardian (ie Cafcass officer). And it was that appointment – because the Cafcass officer wanted to go in an opposite direction to Fiona, and (unlawfully) Fiona’s solicitor would not represent her – which lead to the appeal case. Fiona, following the appeal, was permitted after all that, to have her own lawyer.

 

Child rights: political or not? A challenge to rule-makers…

 

If experienced judges find the rules ‘very confusing’ or complex, by definition they are not ‘simple’. A lawyer for a child – ‘political’ or not – could with a little effort say to the Administrative Court that the rules in Part 16 are illegal. A High Court judge could be asked to send them back to the Rules Committee to make them simple. I would say that would include redrafting them in a form which the people for whom they are designed – children of say 13/14+ – can understand: is that a political point?

 

Certainly Part 16 must be untangled so that all of us, especially family judges, can have a fair crack at understanding what Part 16 says.

Best evidence of complainants and children

20160418_164836ABE evidence in family proceedings

 

In Y and E (Children) (Sexual Abuse Allegations) [2019] EWCA Civ 206 (21 February 2019) Baker LJ drew attention to the importance of ABE evidence gathering (per Achieving Best Evidence in Criminal Proceedings Guidance on interviewing victims and witnesses, and guidance on using special measures, March 2011, Ministry of Justice ). He confirmed that it applied to ‘civil’ (ie including family) as well as to criminal proceedings.

 

The important principles on which ABE evidence gathering are based and its importance in making available evidence from children and some vulnerable witnesses is discussed fully in my Children’s Views and Evidence by David Burrows, Bloomsbury Professional, 2017.

 

This morning the following brief exchange occurred on twitter between myself and a family law specialist barrister, Lucy Reed. There had been irritation expressed already on Twitter that judges state that they ‘prefer’ the evidence of one witness to another (that is their job, surely: to evaluate evidence, and evaluation inevitable involves comparison?). Lucy Reed joined in: ‘…Impression of a witness is a legitimate consideration, but always better to rely on contemporaneous documents / independent evidence than witness recall / impression where possible. In e.g. domestic abuse cases such material often scarce so impression may be more important…’

 

Solicitor’s recording ABE evidence

 

I raised the question – appropriate, as I thought: ‘Why aren’t solicitors who often are the first to see domestic abuse complainants trained to use ABE techniques to record early evidence?’ Came the prompt reply:

 

Lucy Reed‏ @Familoo

FollowingFollowing @Familoo

More

Replying to @dbfamilylaw @PenelopeGibbs2 and 2 others

Because such conversations are privileged? Because they would be conflicted out?

12:33 AM – 4 Mar 2019

 

To which I replied (and this is the reason for this post):

  1. David Burrows‏ @dbfamilylaw3m3 minutes ago

Replying to @Familoo @PenelopeGibbs2 and 2 others

Oh come on Lucy: we’re talking ‘evidence’ (the client’s story); the person taking the ABE statement shld be asking only questions. Only advice is privileged; and any confidentiality (lncl LPP) there may be, can be waived if it saves a client giving live evidence months later

 

‘Such conversations are privileged?’

 

Lucy’s short tweet was a question, but it implied an assumption as to the confidentiality (possibility even legal professional privilege ie legal advice privilege?) of such evidence. And ‘conflicted’ out? I am not quite sure what that can mean in context. I shall concentrate on the confidentiality (‘privilege’) point.

 

First, the confidentiality (if there is any) is that of the client (‘Charlie’): complainant or child. It can be waived by Charlie. And if Charlie knows that, from the start, she is being recorded for possible use in court proceedings any confidentiality is as near impliedly waived as can be imagined. That is to say, she has made it clear that she does not expect privacy in relation to court proceedings, for her statement.

 

Next, in this context privilege attaches to advice given by lawyers (fully explained in Privilege Privacy and Confidentiality in Family Proceedings by David Burrows, January 2019, Bloomsbury Professional). It does not attach to evidence given by a witness; though it will attach to what is said to obtain advice (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513).

 

If from the outset Charlie knows that what is said to her solicitor or the solicitor’s interviewer is evidence – and the solicitor does not chip in with advice, till after the recording – it is difficult to see how privilege (privacy for legal advice) could apply. Anyway, the question would only arise if later the client/witness decides not to waive any privilege there may have been.

 

ABE interviewing in civil proceedings: by solicitors and their staff

 

This is an important field for family lawyers in the case of complaints which do not justify criminal investigation by the police. If it is not properly understood or questioned – dismissed, at the threshold, even? – by family law barristers, it will have difficulty in ever developing.

 

I accept, there is the prior question of whether anything like this should develop.  I believe it should be looked at as a valuable project for development in this area of family law (for complainants and mature children, with appropriate intermediaries). Funds for training lawyers should be committed for it.

Lay representation in civil proceedings

20160419_170156

McKenzie friends in 2019: a debate….

 

Reforming the courts’ approach to McKenzie Friends , Consultation response of February 2019 from the Judicial Executive Board recites the questions the consultation raised and summarises the replies for and against each question (as a good judge does of the competing adversarial system arguments before the court). Its recommendations are brief:

 

‘The role of the judiciary is to apply the law concerning the provision of legal assistance, the right to conduct litigation and rights of audience according to the law established by the Legal Services Act 2007, the common law and precedent.’

 

The response goes on to set out the concern of the Board (JEB) that lay representatives (also called ‘McKenzie Friends’) ‘in effect provide professional services for reward’ when such representatives are

 

  • Unqualified and unregulated,
  • Uninsured and
  • Not subject to the same professional obligations and duties, both to their clients and the courts, as are professional lawyers.

 

‘The statutory scheme was fashioned to protect the consumers of legal services and the integrity of the legal system’. And so, the JEB says, ‘all courts should apply the current law applicable to McKenzie Friends as established by Court of Appeal authority’.

 

That is the nub of the problem: but it is one for the executive and the legislature properly to confront, not for the judiciary to try to muddle about with; for, as Lord Bingham so firmly stressed (Rule of Law), as have many others, the essence of law must be clarity, not  more Lord Chancellor fudge.

 

In this field – legal representation – clarity is fundamental. Otherwise some of the more vulnerable in society will suffer. Clarity means (1) proper training and qualification (which need be nowhere near that of qualified lawyers) which comes with (3) clarity on professional obligations; and (2) insurance and proper client accounts for any cash received.

 

Alongside all this must go the possibility of wasted costs orders being made against lay representatives (Senior Courts Act 1981 s 51(6) and (7)), just as they can be against professional advocates. (The only reference to ‘wasted costs’ is at p 21 of the consultation; but there is no JEB reflection on the fact that this – par excellence – is a matter for primary legislation; though non-party costs orders might be used against a lay representative: Senior Courts Act 1981 s 51(3).)

 

How far can judges go in regulation of lay representatives?

 

This creates a very real constitutional issue. Yes judges are responsible for the procedure of their courts. I believe this to be substantive: that is it need legislation not judicial tinkering. Do they have the powers to regulate who appears before them? I very much doubt it.

 

And while they are at it, they should look at the bar’s Direct Access scheme. I do not query the basis of the scheme; but all court advocates (and if it gets to it I would say the same of lay representatives) should have a client account; a proper scheme for time recording and a means of assessment (formerly taxation) by clients of their bills.

 

The response concludes – and it does so with no suggestion of irony, and little complaint – with:

 

‘It was suggested that, in the present environment where legal aid had been withdrawn, the Judiciary should consider;… the development, with the Bar Council, of a modern version of the pre-Legal Aid and Assistance Act 1949 in forma pauperis procedure. The in forma pauperis procedure was one under which the impecunious could be provided with pro bono legal representation in proceedings in the High Court and Court of Appeal.’

 

An in forma pauperis procedure was first developed by Cardinal Wolsey when he was Henry VIII’s Lord Chancellor in the early 16th Century. Have we really regressed that far?

 

Parallel

 

If I were asked I would say advocates, as they do already – bar and solicitors – should compete; but on a properly regulated level playing field (which goes for Direct Access barristers as well) and with proper legal aid provision; but the government must stop hiding for, or ignoring, the problem which it has deliberately – or negligently – created.