#CSAinquiry BIAS AND THE SINGLE JUDGE

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 [2002] 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.

#CSAINQUIRY: A STATUTORY INQUIRY – some answers

Why a statutory inquiry?

In his blog of 2 November 2014 http://davidhencke.wordpress.com/2014/11/02/child-sex-abuse-inquiry-debacle-why-it-is-important-where-we-go-next/#comment-14969 David Henke (‘DH’) suggests caution in urging the Home Secretary to hold a statutory child sex abuse inquiry. I expressed concern about the passages below in his article; but he assured me he had spoken to ‘another child abuse lawyer @Richard_Scorer ’ (I wouldn’t call myself and ‘abuse’ lawyer: just a family lawyer, with a special interest in administrative law (ie judicial review)).

Mr Scorer, he told me, ‘seems to think I have got it right and even underestimated the position.’ This is Richard Scorer: ‘lawyer, national head of abuse team…. author & Labour councillor…’. These are the passages which troubled me:

(1) ‘a statutory inquiry which can compel people to attend, give information, force people to confess to crimes, with grand public hearings and a very detailed terms of reference. Be careful what you wish for.’
(2) ‘I am told it allows lawyers representing anybody or organisation accused by survivors to demand the status of “an interested party”. That means anything you tell them could go straight back to their lawyers before the inquiry even reports…. If it is non statutory there is no obligation whatever to tell them anything – and their lawyers have no right to find out.’
(3) ‘Finally I hope the panel can tell you whether they have obtained a freezing or preservation order on all documents listing evidence or allegations of child sexual abuse.’

Open justice principle

I have explained questions of open justice – which most journalists want (per European Convention 1950 Art 10 and Human Rights Act 1998 s 12) – at eg https://dbfamilylaw.wordpress.com/2014/10/31/why-family-law-gets-privacy-wrong-response-to-transparency-consultation/ in the context of court proceedings. Openness can be overridden at appropriate stages in the process of a court hearing – eg children or over-anxious witnesses. The court can go into camera (private). With sensitive documents (and the police and others may argue for this) there are ‘closed material procedures’. The question of the extent to which this applies to a statutory inquiry as it does in civil courts is a matter which may need to be decided upon as the inquiry goes along by the chair.

But talk of ‘grand public hearings’, of things going straight back to lawyers (but not to the press? – is that what is want?) has the feeling of being emotive. It is based on no legal authority – statute or common law – of which I am aware.

One of the first rules of statutory inquiry process is that the chair decides procedure (which suggests a judge in the chair might be no bad idea on that account alone). Inquiries Act 2005 s 17 says:

17Evidence and procedure

(1)Subject to any provision of this Act or of rules under section 41, the procedure and conduct of an inquiry are to be such as the chairman of the inquiry may direct.

(2)In particular, the chairman may take evidence on oath, and for that purpose may administer oaths.

(3)In making any decision as to the procedure or conduct of an inquiry, the chairman must act with fairness and with regard also to the need to avoid any unnecessary cost (whether to public funds or to witnesses or others).

I am afraid I do not know what Mr Scorer told DH was meant by s 17; but I see nothing of open courts and grand tribunal hearings. The two cases on inquiries I have cited in the JR application https://dbfamilylaw.wordpress.com/2014/10/23/csainquiry-grounds-of-judicial-review-application/  were both cases where the court agreed with a minister that the tribunals should be held (pre-Inquiries Act 2005, it must be said) in private.

‘Interested party’

The term ‘interested party’ is defined in Inquiries Act 2005, but my brief researches there does not tell me why it is there (ie I can’t find the section which deals with it; but I’ve probably looked no harder than Mr Scorer). The term is not even referred to in the Inquiry Rules 2006. ‘Core participants’ can have legal representatives (Inquiry Rules 2006 rr 5 – 8).

I find this whole passage so surreal, I should perhaps say no more till I can be told what the legal source of it is.

Freezing or possession orders

Under the heading ‘freezing or preservation orders’ DH switches back to a panel, and asks ‘whether [it can say if] they have obtained a freezing or preservation order on all documents listing evidence or allegations of child sexual abuse.’ I had genuinely thought about search and seizing powers for an inquiry (used to be called an Anton Piller order); but where DH and Mr Scorer leave me behind is that they have not explained to me how such orders can be made by an inquiry.

‘Freezing orders’ like ‘search orders’ are injunctions (Senior Courts Act 1981 s 37; granted under Civil Procedure Act 1997 s 7), which in the case of a search order can only be granted in the High Court, and of a freezing order mostly in the High Court (with one or two cases being dealt with in the family court or county court). That is these orders are only available from a court. Further an injunction cannot normally made against the Crown, which would exempt many of the documents an inquiry might want to freeze, or cause to be searched for.

Legal sources

I have tried to set out a law basis for most things I’ve said. I beg anyone else who asserts points of law to say where they’ve got it from. And this is especially where things are read by child sexual abuse survivors (a) who are very anxious to see this child sex abuse inquiry get off to a proper start (most that I am aware of would prefer a statutory inquiry chaired by a judge); and (b) who have enough worries without unreliable information (if DH’s is unreliable?) being put out.

I don’t mind mopping up the legal points afterwards; but I’d much prefer that journalists or anyone else ask me first. I promise I’ll do my best to state what law I know. I’ll say when I don’t know (and there are lots of bits in this area of law where things are unclear). And I won’t tell you things just because I think that’s what you want to hear.

#CSAINQUIRY JUDICIAL REVIEW APPLICATION – GROUNDS

This is the document which has been sent to the judicial review court (High Court, Administrative Court). It is released on instructions from the applicant, a client of The Family Law Co, solicitors and David Burrows.

The grounds were drafted at a time when the Home Office solicitor had not replied to the judicial review pre-action protocol letter; so that eg at that point on three panel members had been appointed.

 

The main bases of the application can be summarised as follows:

  • That survivors of child sexual abuse and their representative bodies were not consulted about the terms of reference of the inquiry, though the Government promised this in the House of Commons in early September 2014;
  • That the panel members (especially Mrs Fiona Woolf) have not fully declared their partiality (‘bias’ in the legal sense) in dealing with the inquiry (or if they have it was after their appointment which is not what the law requires);
  • That Mrs Woolf especially does not have the expertise to chair a panel of this sort; and perhaps not the time to devote to a heavy-weight inquisitorial task such as the inquiry represents; and
  • That the inquiry should be statutory (ie under Inquiries Act 2005) and chaired by a judge of at least High Court level.

The only means of challenging these concerns is by judicial review. Survivors should be consulted about the terms of reference, which should be much wider than now.

Note

In a recent Court of Appeal case (14 October 2014) Otkritie International Investment Management & Ors v Urumov [2014] EWCA as follows:

[1] It is a basic principle of English law that a judge should not sit to hear a case in which “the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that [he] was biased”, see Porter v Magill…. The concept of bias includes any personal interest in the case or friendship with the participants, but extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view;…(italics added).

Grounds for judicial review

REGINA (on the application of JOANNE MICHELLE HEATH) v SECRETARY OF STATE FOR HOME OFFICE

GROUNDS AND REASONS

INTRODUCTORY

The application

  • This application relates to a decision of the Secretary of State for the Home Office (the ‘Home Secretary’) to set up a non-statutory inquiry (the ‘inquiry’) into historic instances of child sexual abuse; and to appoint to its panel three members, including Mrs Fiona Woolf.
  • The applicant is one of a number of people who were sexually abused as children and who considers that Mrs Woolf may not be impartial in the discharge of her role. She appears to have personal relations with politicians whose actions are implicated in the inquiry; she does not have the obvious expertise in the fields of inquiry concerned; and she may not have time to discharge her duties as chair of the inquiry.
  • Information on these points has been requested of the Home Office since 12 September 2014 (date of pre-action protocol letter). Information and documents and any other disclosure by the Home Secretary are yet to be provided.
  • Terms of reference of the inquiry have not been drawn up, so far as the applicant is aware and at the time of preparation of this document.
  • No consultation as to those terms of reference has taken place with the applicant, nor with any other of the survivors with whom she is in contact. Their evidence, it is submitted, will be crucial to the inquiry and assistance from them as to its terms of reference are essential.

Disclosure of information from Mrs Woolf and other panel members

  • The applicant will seek as part of this application full disclosure of information (as summarised in the judicial review pre-action protocol letter (at Appendix 2) now adopted by the applicant).
  • Subject to disclosure by the Home Office, the applicant seeks a declaration that due to her inexperience, the time available to her and her perceived lack of impartiality, Mrs Fiona Woolf is not a person who is appropriate to chair or otherwise to be involved with this inquiry. She therefore seeks a mandatory order that her appointment be revoked.
  • Regardless of disclosure, the applicant seeks orders that
  • That representatives of survivors and survivors themselves should be consulted as to the terms of reference of the inquiry.
  • That the Home Secretary review her decision to make this a non-statutory inquiry and that she set it up as a statutory inquiry chaired by a judge of High Court or higher seniority.

The applicant: ‘sufficient interest’

  • JH is a survivor (otherwise ‘victim’) of sexual abuse as a child. Her abuser was committed to prison on at least five life sentences for rape, including rapes on her.
  • There are a number of survivors like her; and a number of groups of formerly abused individuals from a variety of backgrounds, different situations and different forms of abuse. What each have in common is that they were abused as children.
  • As a survivor JH is a person with sufficient interest in the outcome of this application to justify her making this application (Senior Courts Act 1981 s 31(3)). (For further detail JH’s statement explaining the background to her own case is herewith.)
  • It is possible that JH may be treated as a core participant in connection with the inquiry, whether under Inquiry Rules 2006 r 5(2) or otherwise if the inquiry remains non-statutory.

Background facts

  • On 7 July 2014 the Home Secretary set up an inquiry into child sex abuse (see Appendix 1). When it was set up the inquiry was discretionary (ie not appointed under Inquiries Act 2005); and that remains the position at the time of preparation of this pleading. As mentioned terms of reference for the inquiry remain to be fixed.
  • Initially its chair was to be Dame Elizabeth Butler-Sloss, with two other panel members. It later became necessary for Dame Elizabeth to resign.
  • On 5 September 2014 the Home Secretary announced Fiona Woolf as a replacement for Dame Elizabeth in the following terms:

Further to my statement to the House on 7 July and my WMS of 9 July, I am pleased to announce that I have appointed Fiona Woolf CBE, JP to be the chairman of the independent inquiry panel of experts in the law and child protection, to consider whether public bodies – and other, non-state, institutions – have taken seriously their duty of care to protect children from sexual abuse.

Fiona Woolf has had a long and distinguished career holding high-profile and challenging positions, including President of the Law Society and Chairman of the Association of Women Solicitors (AWS), and is only the second woman since 1189 to hold the position of Lord Mayor of London. As a lawyer, and latterly partner, at CMS Cameron McKenna for over 20 years, Fiona Woolf has worked in over 40 jurisdictions. She has advised over 25 governments and multi-lateral agencies such as the World Bank. She has also served as a member of the Competition Commission for 8 years. I am confident that Fiona Woolf has the skills and experience needed to set the strategic direction of the Inquiry, to lead the work of the Panel, and to challenge individuals and institutions without fear or favour to get to the bottom of this issue, and stop it happening again.

  • Suggestions have been made by the applicant and other survivors that Mrs Woolf is not unbiased; that she may not have the necessary, relevant experience for the job of this type of inquiry; and that she may not have the time necessary to devote to it. Fears on this account have been raised with the Home Office (see pre-action protocol letter (‘PAP letter’): Appendix 2). The original PAP letter was addressed to the Treasury Solicitor (for the Home Office) by a survivor to maintain momentum in the process. The change to Joanne Heath as applicant has been indicated to the respondent through her solicitor without any apparent objection being taken.

Pre-action protocol

  • To date there has not been any response or explanation; nor any disclosure by the Home Office as to what information they have on these questions from any panel member and, in particular, from Mrs Woolf (and see references to Inquiries Act 2005 ss 8 and 9 below).
  • The PAP letter has been acknowledged on behalf of the respondent (Appendix 3); but even their extended dead-line (by comparison with the normal protocol time-limits) of 17 October 2014 has passed. At the time of preparation of this document no response has been received.
  • The only way in which a survivor can challenge the impartiality and other attributes of a chair to conduct an inquiry such as this is by judicial review (as distinct from the right of a litigant in court proceedings to apply direct to a judge to seek his/her recusal from a case).
  • Although the inquiry was announced on 7 July 2014 it is understood that the panel has only met once and that in the absence of Mrs Woolf.

Consultation

  • There has been no consultation as to the terms of reference with survivors; or with groups of survivors or their representatives, so far as is known by JH. They are the individuals who may be directly affected by important aspects of the inquiry and their experiences could help to inform the work of those entrusted with the drafting of the terms of reference.
  • It is known by the respondent that survivors are preparing draft terms of reference. The current draft is at Appendix 4, and has been received by the respondent through her solicitors.

THE LAW

(1)        INQUIRY PANEL

Statutory provision and common law

  • Inquiries Act 2005 (‘IA 2005’) was passed to clarify the law on the appointment of inquiries; though it did not make it obligatory for a minister so to do. Where an inquiry is set up under the 2005 Act it is governed by Inquiry Rules 2006 (‘IR 2006’). So far as it is necessary so to infer, it will be said that the Act and the 2006 Rules codify many common law principles applicable to this application.
  • For the present these grounds and reasons will proceed as if IA 2005 and IR 2006 represent the common law (and thus non statutory inquiries), save where it is obvious that the common law and statute are inconsistent.
  • Administrative Law (2009) Wade & Forsyth (10th Ed) at page 828 comments that though IA 2005 does not expressly prevent ministers from setting up ‘ad hoc non statutory inquiries… the 2005 Act procedure will doubtless emerge as the standard with its tight control over the direction and costs of the discretionary inquiry.’
  • IA 2005 s 4 deals with the setting up of a statutory inquiry panel in the following way:

4 Appointment of inquiry panel

(1) Each member of an inquiry panel is to be appointed by the Minister by an instrument in writing.

(2) The instrument appointing the chairman must state that the inquiry is to be held under this Act.

(3) Before appointing a member to the inquiry panel (otherwise than as chairman) the Minister must consult the person he has appointed, or proposes to appoint, as chairman.

  • What follows is subject to any appropriate and full disclosure being provided as to the matters below by the Home Secretary.

Impartiality and ‘bias’

  • It is a principle of English administrative law that any decision-maker must be free from bias; and principles akin to the bias test in judicial standing and recusal are imported accordingly (de Smith’s Judicial Review (2013) ed Woolfe et al at ; Administrative Law (2009) Wade & Forsyth (10th Ed) at ).
  • Inquiries Act 2005 s 9 provides as follows:
  1. Requirement of impartiality

(1) The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a) a direct interest in the matters to which the inquiry relates, or

(b) a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2) Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

(3) If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4) A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.

  • The applicant does not know what disclosure has been made by any inquiry member as to any association which he or she may have which comes within the compass of

s 9(1).

  • Whereas a party to court proceedings knows that s/he can apply to a judge to recuse him/herself, there is no obvious procedure provided for in IR 2006 or otherwise as to how a person interested in the outcome of an inquiry, can validly object to a panel appointment save by judicial review. This application is pursued in this way accordingly.

Experience

  • IA 2005 s 8(1) provides as follows:
  1. Suitability of inquiry panel

(1) In appointing a member of the inquiry panel, the Minister must have regard—

(a) to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry;…

  • The office website of C/M/S, Law Tax, solicitors describes Mrs Woolfe thus:

Fiona Woolf has been at the cutting edge of all the major reforms in the electricity sector for over 20 years. She has worked on over 40 jurisdictions on electricity market implementation, regulation and power and transmission projects. She is now focusing on large regional infrastructure projects and trading arrangements and regulatory regimes to attract investment. Fiona is a non-executive director of a water company and was a former member of the Competition Commission. Fiona is currently serving as the Lord Mayor of the City of London for 2013/14.

  • Taken ‘as a whole’ the panel has no judicial member (as was Lady Butler Sloss[1]); though Mrs Woolfe is a solicitor and she is understood have sat as a magistrate (with a legal adviser) she has no experience of criminal or family law; nor of cross-examination of witnesses or of detailed inquiry. She has no experience to draw upon if (as it must be) part of the inquiry’s terms of reference (when finally settled) is to make recommendations.
  • There are a variety of other parallel and similar enquiries (Jersey; reconsidering Waterhouse: Macur LJ; Rotherham; etc …). It is not obvious that Mrs Woolfe would have the experience (by comparison with (say) Macur LJ to co-ordinate and draw together all the recommendations of these various inquiries.

Time available for the job

  • Though she was appointed at the beginning of September there is no evidence that Mrs Woolfe has yet started work on the inquiry remit. Lord Leveson sat more or less continuously for a year. Can Mrs Woolfe assure the home Secretary of the same time commitment?

(2)        CONSULTATION

Terms of reference

  • IA 2005 s 5 provides as follows:
  1. Setting-up date and terms of reference

(1) In the instrument under section 4 [set out in full above] appointing the chairman, or by a notice given to him within a reasonable time afterwards, the Minister must—

(a) specify the date that is to be the setting-up date for the purposes of this Act; and

(b) before that date—

(i) set out the terms of reference of the inquiry;

(ii) state whether or not the Minister proposes to appoint other members to the inquiry panel, and if so how many.

(2) An inquiry must not begin considering evidence before the setting-up date.

(3) The Minister may at any time after setting out the terms of reference under this section amend them if he considers that the public interest so requires.

(4) Before setting out or amending the terms of reference the Minister must consult the person he proposes to appoint, or has appointed, as chairman.

(5) Functions conferred by this Act on an inquiry panel, or a member of an inquiry panel, are exercisable only within the inquiry’s terms of reference.

(6) In this Act “terms of reference”, in relation to an inquiry under this Act, means—

(a) the matters to which the inquiry relates;

(b) any particular matters as to which the inquiry panel is to determine the facts;

(c) whether the inquiry panel is to make recommendations;

(d) any other matters relating to the scope of the inquiry that the Minister may specify.

  • There is no statutory duty upon the Home Secretary to consult on the subject of the inquiry’s terms of reference. It might be thought that the survivors’ experiences would inform the drafting of terms of reference. Their involvement in drafting might also assist in securing as much public support as possible for the work of the inquiry.
  • Consultation could take place with some of the leading spokespeople for the survivors and others who represent the survivors. Ultimate responsibility for the terms of reference, it is accepted, rests with the Home Secretary and chair of the inquiry.
  • It will be noted that s 5(3) speaks of ‘public interest’ which implies some dialogue with a ‘public’; and in the light of the direction in which administrative law is going (see eg R v North & East Devon HA exp Coughlan [1999] EWCA 1871, [2001] QB 619) it might be thought that some public consultation is legitimately to be expected by those directly concerned as subjects of the inquiry.

RIGHTS OF THE APPLICANT ENGAGED BY THIS APPLICATION

Common law and European Convention 1950 rights

  • The applicant challenges the decision of the Secretary of State to appoint the panel, and on the basis of her present knowledge she does so by asserting that it engages her civil right to a fair trial of the issues into which the tribunal must inquire. A judge must be entirely free from bias; and this can only be challenged within the course of separate judicial review or other court proceedings.
  • There is no clear basis under present inquiry procedures on which an interested party in respect of an inquiry can challenge a panel members’ bias or other perceived shortcomings in the make-up or terms of reference of the inquiry.
  • It will be submitted that the applicant has a ‘civil right’ within the terms of Art 6(1); and that this is engaged by the right of a person with a sufficient interest in the outcome of the inquiry to challenge its format and, in particular, the appropriateness and partiality of any of its members.
  • Provided that that person (A) can show ‘sufficient interest’ (Senior Courts Act 1981 s 31(3); or that she is a ‘victim of an unlawful act’: Human Rights Act 1998 s 7(1)) in its proceedings and if a right is in issue, it is submitted that A can apply for judicial review of decisions in relation to the setting up of the inquiry.
  • De Smith’s Judicial Review ed Woolf et al, 7th Edition (2013) deals with the question of judicial review and inquiries at paras 1-102 to 1-106.
  • In R (ota Howard and anor) v Secretary of State for Health [2002] EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), Divisional Court (Simon Brown LJ and Scott Baker J) (judgment was given on the same day, 15 February 2002), applicant sought review of decisions to hold a private, not public, inquiry in each case (Howard: widespread abuse of patients by two doctors; Persey: inquiry following the foot and mouth epidemic). The challenge was based on the rights to freedom of expression under Art 10 (not as here under Art 6(1)). Both applications were refused.
  • In neither case was there any suggestion that the challenge to the setting up of the inquiry was impermissible.
  • If there is an assertion that the decision-making qualities of the inquiry chairman may be unlawful because (say) of a perceived bias, that should – in logic – be capable of challenge. In the analogous case of a judge in court proceedings, the party who wishes to assert the judge’s bias can apply in the existing court proceedings to the judge, and ask him/her to recuse him/herself (come off the case).
  • IR 2005 provides no mechanism for any challenge, akin to (say) an application to a judge to recuse in ordinary civil proceedings.
  • If bias can be challenged in a judge as a matter of guarantee to a fair trial and as a matter of case management or other court direction, it is submitted that it must be that a panel member’s bias can be challenged by judicial review.
  • The court will be asked in judicial review to consider whether – in terms of bias, or lack of impartiality or any other impediment – the decision of the Secretary of State to appoint was lawful. Thus, for example, in the two cases cited above the court had sympathy with the applicants who wished to have the enquiry made open to the public; but there was no basis on which they could fault the legitimate exercise of the discretion of the Secretary of State in each case.
  • ‘Bias’ goes to the root of a fair trial; and to the root of a fair disposal of an inquiry’s work (and see Inquiries Act 2005 s 9 above). If as a matter of law, bias is found to exist (actual or perceived), it is submitted that the only basis on which the applicant can challenge the panel appointment is by judicial review.

PROTECTIVE COSTS ORDER

  • The applicant applies in her own right; but also as a representative of a number of individual survivors and with the support of a representative body, MAMAA UK. She seeks costs protection. She plans to apply for legal aid. She is advised that financially she is eligible for legal aid.
  • In R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192 the Court of Appeal considered the making of protective costs orders and approved such orders in the following terms:

[74] We would therefore restate the governing principles in these terms:

(1) A protective costs order may be made at any stage of the proceedings, on such conditions as the court thinks fit, provided that the court is satisfied that:

(i) the issues raised are of general public importance;

(ii) the public interest requires that those issues should be resolved;

(iii) the applicant has no private interest in the outcome of the case;

(iv) having regard to the financial resources of the applicant and the respondent(s) and to the amount of costs that are likely to be involved it is fair and just to make the order; and

(v) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in so doing.

(2) If those acting for the applicant are doing so pro bono this will be likely to enhance the merits of the application for a PCO.

(3) It is for the court, in its discretion, to decide whether it is fair and just to make the order in the light of the considerations set out above.

  • This approach was approved by the Court of Appeal in R (ota Buglife – The Invertebrate Conservation Trust) v Thurrock Thames Gateway Development Corp [2008] EWCA Civ 1209; and reviewed recently in eg R (The Plantagenet Alliance Ltd) v Secretary of State for Justice [2013] EWHC 3164 (Admin), Haddon-Cave J.
  • It is hoped that these grounds and reasons explain the public interest in this case (especially where it is argued that a prominent tribunal member may not be free from bias); and that that public interest demand that the issue be resolved by this court. The applicant’s private interest in the matter is limited to the fact that she is one of many who are closely concerned at the outcome of this inquiry. Her financial resources would prevent her entirely from bringing this claim, whilst those of the respondent are substantial. If an order is not made it would be impossible for the applicant to pursue her applicant (especially without alternative – ie legal aid – government funding).
  • The applicant cannot afford to pay lawyers to assist with this claim. They have acted pro bono to date; though they cannot guarantee to continue to pursue it for no fee beyond a limited stage.
  • The applicant seeks a protective costs order accordingly; and will inform the court and the respondent immediately when the outcome of her application for legal aid is known.

SECTION 7

AND THE APPLICANT CLAIMS:

  • Disclosure of all information which the Home Secretary has concerning all panel members:
  • as to the impartiality and possible bias of all members (in particular of Mrs Fiona Woolfe
  • as to the relevant experience to chair the inquiry of Mrs Woolfe
  • as to the extent of time which Mrs Woolfe can devote to the job
  • Permission to proceed with an application for judicial review and order thereupon as follows.
  • A declaration that due to her inexperience, the time available to her and her perceived lack of impartiality, Mrs Fiona Woolf is not a person who is appropriate to chair or otherwise to be involved with this inquiry.
  • A consequent quashing order as to the appointment of Mrs Woolfe to the inquiry panel.
  • A mandatory order that the Home Secretary should consult with representative bodies for the survivors and with survivors themselves as to the terms of reference of the inquiry.
  • A protected costs order (as applicable and dependant on the outcome of the applicant’s application for legal aid).

David Burrows

SECTION 9

(1)        Disclosure

The applicant presumes that the respondent will be entirely frank in reply to this application and will give full disclosure in the usual way.

In particular the applicant seeks, as the Home Office knows, full information and appropriate disclosure as to what the Home Secretary knows as to the bias, expertise and time commitment of the panel members, especially of the proposed chairman.

Further the applicant seeks all information and documentation as to the steps taken by the Home Secretary to consult over the terms of reference of the inquiry.

(2)        Applicant’s address

The applicant’s assailant has recently been released on parole, and she fears that if her address is made public in any way he may attempt to contact her.

(3)        Protective costs order

Please see the section of the grounds above which deals with a protective costs order.

Appendix 1

 

HOME SECRETARY’S STATEMENT SETTING UP A CHILD SEXUAL ABUSE INQUIRY

Home Secretary’s statement of 7 July 2014 setting up a child sex abuse inquiry

With permission, Mr Speaker, I would like to make a statement about the sexual abuse of children, allegations that evidence of the sexual abuse of children was suppressed by people in positions of power, and the government’s intended response.

Mr Speaker, in my statement today I want to address two important public concerns. First, that in the 1980s the Home Office failed to act on allegations of child sex abuse. And second, that public bodies and other important institutions have failed to take seriously their duty of care towards children.

As I do so, I want to set three important principles. First, we will do everything we can to allow the full investigation of child abuse and the prosecution of its perpetrators, and we will do nothing to jeopardise those aims. Second, where possible the government will adopt a presumption of maximum transparency. And third, we will make sure that wherever individuals and institutions have failed to protect children from harm, we will expose these failures and learn the lessons.

Concern that the Home Office failed to act on allegations of child abuse in the 1980s relates mainly to information provided to the department by the late Geoffrey Dickens, a member of this House between 1979 and 1995.

As the House will be aware, in February 2013, in response to a Parliamentary question from the Hon Member for West Bromwich East, the Permanent Secretary of the Home Office, Mark Sedwill, commissioned an investigation by an independent expert into information the Home Office received in relation to child abuse allegations, including information provided by Mr Dickens. In order to be confident that the investigation would review all relevant information, the investigation reviewed all relevant papers available relating to child abuse between 1979 and 1999.

The investigation reported last year and its executive summary was published on 1 August 2013. It concluded there was no single “Dickens Dossier”, but there had been letters from Mr Dickens to several home secretaries over several years that contained allegations of sexual offences against children. Copies of the letters had not been kept, but the investigator found evidence that the information Mr Dickens had provided had been considered and matters requiring investigation had been referred to the police.

In total, the investigator found thirteen items of information about alleged child abuse. The police already knew about nine of those items, and the remaining four were passed by the Home Office to the police immediately.

The investigation found that 114 potentially relevant files were not available. These are presumed – by the Home Office and the investigator – destroyed, missing or not found, although the investigator made clear that he found no evidence to suggest that the files had been removed or destroyed inappropriately.

The investigation found no record of specific allegations by Mr Dickens of child sex abuse by prominent public figures.

Upon completion of the investigation, the Home Office passed the full text of its interim report and final report, along with accompanying information and material, to the police for them to consider as part of their ongoing criminal investigations.

As Mark Sedwill has said, the investigator recorded that he had unrestricted access to Home Office records and he received full cooperation from Home Office officials. The investigator was satisfied that the Home Office passed all credible information about child abuse in the time period – from Mr Dickens and elsewhere – to the police so they could be investigated properly.

Mr Speaker, I believe that the Permanent Secretary did all the right things in listening to the allegations made by the Hon Member for West Bromwich East and ordering an independent investigation. I am confident that the work he commissioned was carried out in good faith. But I know that with allegations as serious as these, the public needs to have complete confidence in the integrity of the investigation’s findings.

So I can tell the House that I have today appointed Peter Wanless – the chief executive of the National Society for the Prevention of Cruelty to Children – to lead a review not just of the investigation commissioned by Mark Sedwill but also how the police and prosecutors handled any related information that was handed to them. Peter Wanless will be supported in his work by an appropriate senior legal figure, who will be appointed by the Permanent Secretary. Where the findings of the review relate to the Director of Public Prosecutions, it will report to the Attorney General as well as to me.

I will ask the review team to advise my officials on what redactions to the full investigation report might be needed in order that, in the interests of transparency, it can be published without jeopardising any future criminal investigations or trials. I expect the review to conclude within eight to ten weeks, and I will place a copy of its terms of reference in the House Library today.

In addition to the allegations made by Geoffrey Dickens, there have also been allegations relating to an organisation called the Paedophile Information Exchange, a paedophile campaign group that was disbanded in 1984. In response to another query from the Hon Member for West Bromwich East, the Permanent Secretary commissioned another independent investigation in January this year into whether the Home Office had ever directly or indirectly funded PIE. That investigation concluded that the Home Office had not done so, and I will place a copy of the investigation’s findings in the House Library today. But, again, in order to ensure complete public confidence in this work, I have also asked Peter Wanless to look at this investigation as part of his review.

Mr Speaker, I now want to turn to public concern that a variety of public bodies and other important institutions have failed to take seriously their duty of care towards children. In recent years, we have seen appalling cases of organised and persistent child sex abuse. This includes abuse by celebrities like Jimmy Savile and Rolf Harris, as well as the systematic abuse of vulnerable girls in Derby, Rochdale, Oxford and other towns and cities. Some of these cases have exposed a failure by public bodies to take their duty of care seriously and some have shown that the organisations responsible for protecting children from abuse – including the police, social services and schools – have failed to work together properly.

That is why, in April 2013, the government established the National Group to tackle Sexual Violence Against Children and Vulnerable People, which is led by my Hon Friend the Minister for Crime Prevention. This cross-government group was established to learn the lessons from some of the cases I have mentioned and the resulting reviews and inquiries. As a result of its work, we now have better guidance for the police and prosecutors, new powers for the police to get information from hotels that are used for child sexual exploitation, and better identification of children at risk of exploitation through the use of local multi-agency safeguarding hubs. In the normal course of its work the Group will publish further proposals to protect children from abuse.

I know that in recent months many Members of the House, from all parties, have campaigned for an independent, overarching inquiry into historical allegations of child abuse. In my correspondence with the seven Members of Parliament who wrote to me about the campaign – the Hon Members for Birmingham Yardley, Brighton Pavilion, East Worthing and Shoreham, Richmond Park, Rochdale, Wells, and West Bromwich East – I made clear that the government did not rule out such an inquiry.

I can now tell the House that the government will establish an independent inquiry panel of experts in the law and child protection to consider whether public bodies – and other non-state institutions – have taken seriously their duty of care to protect children from sexual abuse. The inquiry panel will be chaired by an appropriately senior and experienced figure. It will begin its work as soon as possible after the appointment of the chairman and other members of the panel. Given the scope of its work, it is not likely to report before the general election – but I will make sure that it provides an update on its progress to Parliament before May next year. I will report back to the House when the inquiry panel chairman has been appointed and the full terms of reference have been agreed.

It will, like the inquiries into Hillsborough and the murder of Daniel Morgan, be a non-statutory panel inquiry. This means that it can begin its work sooner, and because the basis of its early work will be a review of documentary evidence rather than interviews with witnesses who might themselves still be subject to criminal investigations, it will be less likely to prejudice those investigations. But I want to be clear that the inquiry panel will have access to all the government papers, reviews and reports it needs. Subject to the constraints imposed by any criminal investigations, it will be free to call witnesses from organisations in the public sector, private sector and wider civil society. And I want to make clear that – if the inquiry panel chairman deems it necessary – the government is prepared to convert it into a full public inquiry in line with the Inquiries Act.

Mr Speaker, I began my statement by saying that I wanted to address the dual concern that in the past the Home Office failed to act on information it received, and, more broadly, that public bodies and other institutions have failed to protect children from sexual abuse. I believe that the measures I have announced today do address those concerns.

I also said I wanted the work we are doing to reflect three principles. That our priority must be the prosecution of the people behind these disgusting crimes. That wherever possible – and consistent with the need to prosecute – we will adopt a presumption of maximum transparency. And that where there has been a failure to protect children from abuse, we will expose it and we will learn from it. I believe that the measures announced today do reflect those important principles. And so I commend this statement to the House.

Appendix 2

12 September 2014

Treasury Solicitor

One Kemble Street

London

WC2B 4TS

thetreasurysolicitor@tsol.gsi.gov.uk

Dear Sir

Child Sex Abuse Inquiry: appointment of chair to the inquiry panel

Proposed claim for judicial review

Proposed defendant

This letter is written in the terms of the judicial review pre-action protocol. It concerns the Home Secretary’s appointment of Fiona Woolf to an inquiry (with terms of reference as yet undisclosed). I believe the Home Secretary has used discretionary powers (ie the inquiry is not set up under Inquiries Act 2005 s 5). She is the proposed defendant.

Applicant

I am Ian McFadyen, and my interest in the subject matter of this letter and any subsequent application for judicial review is as a survivor of child abuse when I was at school between ## and ##.

Law

As I say, I am assuming the inquiry is set up under your discretionary powers (not under Inquiries Act 2005). I shall assume, however, that in many respects the 2005 Act merely codifies the common law. It is your powers at common law, for the present with which we are concerned.

In particular, at common law, you have a duty to act fairly; and you and any member of the panel must be – and be seen to be – impartial: that is free from any possible or perceived bias.

 

Details of the matter being challenged

(a)        Suitability

It is not clear to me that the qualifications of Lady Woolf bring her within the terms of suitability, certainly as would be the position under Inquiries Act 2005 s 8(1)(a).

(b)        Partiality

Of more concern to me is whether you have considered her impartiality (at common law and in terms of Inquiries Act 2005 s 9); and whether you have received from her full information as to her acquaintance with individuals whom she may have to cause to be interviewed by the panel, and on whom she may have to prepare a damaging report. Her role will be that of an inquisitor, not unlike the police perhaps: can she perform in this way if her neighbour, for example, is someone whose role she has to investigate in her inquiry?

(c)        Consultation

I have been told you said in the latter part of July that you would ‘consult’ concerning the setting up of the inquiry. I am not clear what you meant by this, and with whom you intend to consult. If it was only with the seven MPs who were concerned over all this, even they were not consulted.

Certainly survivors such as myself were not approached for any thoughts we might have.

The issue – bias: impartiality

The main issue and basis for any possible challenge to your setting up of the inquiry is the importance of openness in relation to personal, business or other relations of panel members with those who may be – or should be – criticised by the inquiry. This applies to all to members, and especially perhaps the chair of the inquiry.

Have all members been fully frank with you as to their impartiality? If so, please would you publish what has been said? (This could perhaps be dealt with on a freedom of information basis?)

The details of the action that the defendant is expected to take

The actions I ask you to take are to forward to me:

  • Immediate publication of what you have been told by Lady Woolf and other panel members as to any matters which might go to their partiality in this inquiry
  • A statement of your reasons for appointing Lady Woolf instead of, for example, a Court of Appeal or Supreme Court judge (whether practising or recently retired)
  • Information as to what you may have intended by ‘consultation’ when you set up the inquiry; and of what consultation you actually carried out

The details of any information sought

As above

Proposed reply date

 

The setting up of this inquiry has already been long delayed. I would not want appointment of any panel member to delay it still further. If I am judicially to review your decision time limits in this area are very short (see eg Inquiries Act 2005 s ).

I hope, therefore, you can reply to this letter (since all information should already be available to you) by or before 4 pm on 15 September 2014.

Yours sincerely

Appendix 3

DX 123242 Kingsway 6

Switchboard: 0207 210 3000

Direct Line: 0207 210 2967

Direct Fax:  0207 210 3410

melanie.farr@tsol.gsi.gov.uk

Please Quote: Z1423842/MPT/B4

Your Reference: –

David Burrows
Solicitor advocate

Kemp House,

152 City Road,

LONDON

BY EMAIL

8 October 2014

Dear Mr Burrows

Child Sex Abuse Inquiry: appointment of the inquiry panel and Mrs Woolf: Proposed claim for Judicial Review

We write further to our letter dated 30 September 2014 and our telephone conversation with you on 6th October 2014.

We understand that you act for Mr MacFayden in this matter.

As discussed, we would be grateful if you could provide clarification in respect of certain matters referred to in your client’s pre action letter dated 12th September 2014.

Firstly, in the second part of the paragraph entitled: The Issue – Bias: Impartiality; your client asks whether all members of the panel have been fully frank as regards their impartiality and if so whether the Home Secretary will publish what has been said. Your client’s letter states in brackets that this could perhaps be dealt with on a freedom of information basis.

Please confirm whether your client does in fact wish to make a request for information under the Freedom of Information Act. Any request under the Freedom of Information Act should be directed to the relevant authority, in this case the Home Office. The Treasury solicitors do not hold the information referred to in your letter.

We would suggest that you direct any request to The Home Office, 2 Marsham Street, London, SW1P 4DF.

We would be grateful if you could also provide further detail as to the information your client is seeking. This will assist our client in identifying the information as quickly as possible.

In your client’s letter, he refers to the action that the defendant is expected to take. There is no reference to the remedies sought however and we would be grateful if you could provide such details in your response to this letter.

In the course of our telephone conversation on 6th October, we discussed our request for an extension of time to respond to the pre action letter. You have asked that we try to provide a response by Monday 13th October. While we will endeavour to provide a response as soon as possible, we requested further time to enable us to provide a fully comprehensive reply to your letter. We would be grateful to have until 20th October 2014 to provide a response.

We look forward to hearing from you.

Yours sincerely

Melanie Farr

For the Treasury Solicitor

 

Appendix 4

DRAFT – TERMS OF REFERENCE OF CHILD SEX ABUSE INQUIRY

See – https://dbfamilylaw.wordpress.com/2014/10/16/csainquiry-draft-terms-of-reference-iii/

[1] Not sure what her title now is

RIGHT TO A FAIR INQUIRY: A HUMAN RIGHT?

European Convention 1950: ‘right to a fair trial’

‘Rights’ have been in the news recently, especially with Tory plans to repeal the Human Rights Act 1998. As explained at https://dbfamilylaw.wordpress.com/2014/10/05/human-rights-act-1998-and-english-law-part-ii/ the vast majority of rights protected by the European Convention 1950 are protected also by the English common law. Art 6(1) of the Convention protects the ‘right to a fair trial’; or, the corollary, it gives freedom from injustice. This right and its associated components – such as a trial in open court, advice privilege, freedom from bias, and duties of disclosure of documents – have been well-known to the common law for centuries. For most routine areas of court work the concept of a fair trial is uncontroversial. A person must have (1) notice of the case against him/her. The judge must be (2) entirely free from bias and (3) s/he must hear both sides of the argument before delivering a public judgement.

But supposing that A is someone concerned in the process of a public inquiry and wishes to say that an inquiry panel member is not impartial (‘biased’ in the technical legal sense: in A’s reasonably held opinion); or A wishes to say that s/he is personally affected by the decision-making process of a parole board in the release of someone convicted of sexual abuse on A; or A has evidence to show that a person is inappropriate to work in a school with young children? Does A have the right to challenge any of the appointments concerned; and if so on what grounds and how?

Article 6(1): ‘civil rights’

The relevant part of Art 6(1) reads:

6          Right to a fair trial

1 In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly…

So what is a ‘civil right’ (other than one where a person can use ordinary court proceedings)? Its definition first depends on the end result being that a public body decision-maker is required to make some form of judicial or quasi-judicial decision. Many administrative decisions have a judicial quality; and in such a  case the decision-maker must act in a quasi-judicial way: free from bias and hearing both sides of any argument. S/he must take into account all matters relevant to the decision, and not take into account irrelevant matters; and s/he must act within statutory powers provided to, and according to procedures required to be followed by, the public body.

But where do rights available under administrative law (eg to be consulted; to receive reasons (or not) for a decision and so on) shade into rights which are ‘civil rights’ to be protected by a fair trial under Art 6(1)?

Personal interest

The starting point must be the extent of the personal interest which A (in the examples above) has in the outcome of the decision. What is the decision challenged and to what extent is A affected directly by it?

By this criterion the victim of child sexual abuse who is still alive when her abuser is being considered for parole has a direct personal interest in the outcome of the parole board’s decision-making. If the abuser may return to live near her or her family then she may have real, and justified, anxieties about what he may do, as may her family. It would be thought that she should be heard as to his explanation for parole being appropriate after he has presented his case. It could plausibly be argued that she has a civil right so to be heard. More research is needed as to the extent of that right. Research will probably find that rights are limited, as the law now stands.

At the other end of the spectrum is the person concerned at appointment of an individual (B) who may be an alleged abuser, though not convicted. His/her information should be passed to the school appointing B. It is difficult to see how this duty (so far as it is a ‘duty’) to provide information can be converted to an actionable ‘right’; save perhaps where A has – or will have – a child at the school. (On a separate point, if a person plans to give information to a public body which is confidential they must be careful how they go about it (R (H and L) v A City Council [2011] EWCA Civ 403: disclosure of confidential information by police to a local authority who passed on that information inappropriately and in breach of confidence to others).

Spectrum of personal interest

In between these two ends of the spectrum is the person who wants to object to the format or terms of reference of an inquiry. Provided that that person (A) can show ‘sufficient interest’ (Senior Courts Act 1981 s 31(3); or that she is a ‘victim of an unlawful act’: Human Rights Act 1998 s 7(1)) in the inquiry’s proceedings and if a right is in issue, then A can apply for judicial review of decisions in relation to the setting up of the inquiry.

In R (ota Howard and anor) v Secretary of State for Health [2002] EWHC 396 (Admin), Scott Baker J and R (ota Persey and ors) v Secretary of State for Environment, Food and Rural Affairs [2002] EWHC 371 (Admin), Divisional Court (Simon Brown LJ and Scott Baker J) (judgment was given on the same day, 15 February 2002), applicant sought review of decisions to hold a private, not public, inquiry in each case (Howard: widespread abuse of patients by two doctors; Persey: inquiry following the foot and mouth epidemic). The challenge was based on the rights to freedom of expression under Art 10. Both applications were refused.

In neither was there any suggestion that the challenge to the setting up of the inquiry was impermissible; but in these two cases the claims were framed under Art 10. If there is an assertion that the decision-making qualities of the inquiry chairman may be unlawful because of a perceived bias, that should – in logic – be capable of judicial review challenge. In the analogous case of a judge in court proceedings, the party who wishes to assert the judge’s bias can apply to the judge and ask him/her to recuse him/herself (come off the case). How can this be done in the case of an inquiry where the panel is chosen by the Secretary of State concerned and there are no court proceedings in existence; nor will there be?

The law in the case of an inquiry is much the same as the common law (I explained this in eg https://dbfamilylaw.wordpress.com/2014/09/06/reflections-on-law-of-bias/ and https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/). Inquiries Act 2005 s 9 deals with the question of bias – otherwise freedom from impartiality – as follows:

9 Requirement of impartiality

(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a) a direct interest in the matters to which the inquiry relates, or

(b) a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2) Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

If bias can be challenged in a judge as a matter of guarantee to a fair trial, it must – in logic – be the case that it can be challenged by judicial review. A has a basis for application to the Admin Court to test, in front of a High Court judge, the bias of a panel chairman or member. At present it is not clear from any known existing case law, that law will follow logic. It remains for A to test the logic in law; and to test the ‘fair’-ness of a panel appointment in terms of Art 6(1).

Lawfulness of the decision

If this can be done, then it will be for the Admin Court – to which a judicial review application is made – to assess the information available to the Secretary of State. The court will consider whether – in terms of bias, or lack of impartiality – the decision to appoint was lawful. Thus, for example, in the two cases cited above the court had sympathy with the applicants who wished to have the enquiry made open to the public; but there was no basis on which the judges could fault the legitimate exercise of the discretion of the Secretary of State in each case. They were not prepared to say that the decision of the Secretary of State was unlawful.

‘Bias’ goes to the root of a fair trial; and to the root of a fair disposal of an inquiry’s work (and see Inquiries Act 2005 s 9 above). If as a matter of law, bias is found to exist (actual or perceived), it is difficult to see how the court could not intervene on judicial review to quash the Secretary of State’s decision to appoint the person found to be biased.

#CSAINQUIRY: PANEL ‘EXPERTISE’ AND BIAS

A solicitor and a magistrate

Fiona Woolf has been presented (ie it is part of her curriculum vitae), as chair of the proposed child sex abuse inquiry, as a solicitor and a form of judge. She is a former President of the Law Society (of which both she and I are members); and she is a voluntary judge (ie a magistrate: I do not know over what period, or how often, she sat). Each capacity brings with it certain duties in terms of skill, conflicts of interests, and declaration of bias. (It is not for me to make assumptions as to any conflict or bias which may reside in Mrs Woolf: that is for her personally to state (see Inquiries Act 2005 s 9 below); and for the press and others – if they see fit – to speculate.)

As a magistrate, let us be clear, Mrs Woolf would not have been operating in a conventional judicial role. She was not expected to know any law. That is for a magistrate’s clerk (now a ‘legal adviser’) who advises magistrates on law. A magistrate, however, would be expected to understand and declare any interest or partiality in a case. For example, s/he could not sit on a case involving a neighbour or friend (Lord Bingham CJ gave this as a cardinal example in the well-known bias case of Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 QB 451 http://www.bailii.org/ew/cases/EWCA/Civ/1999/3004.html ).

I want to concentrate on Mrs Woolf’s (and my) duties as a solicitor and her responsibilities as a form of judge. These, I would say, are but part – though a very important part – of her duties as a member of the panel. They are as important as, perhaps more so, that her duties as a solicitor.

Expertise

The Solicitors Regulation Authority Code of Practice which governs the practice of solicitors requires us to act with ‘skill’ appropriate to their case for any particular client (Chapter 1: O(1.4)), and to avoid conflicts of interest (Chapter 3).

The skill or ‘expertise’ point revives in the common law in relation to tribunal membership, as codified in Inquiries Act 2005 s 8(1) which provides:

(1)In appointing a member of the inquiry panel, the Minister must have regard—

(a)to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry;

It perhaps goes without saying that as lawyers we must give all the time needed for a client’s matter. I am not entirely clear how Mrs Woolf will deal with this inquiry alongside all her other duties. Mr Justice Waterhouse, for example, had to read 9,000 files and 3,500 statements in the North Wales enquiry (http://tna.europarchive.org/20040216040105/http:/www.doh.gov.uk/lostincare/20102a.htm) . I suspect this enquiry will generate much more work.

Impartiality: freedom from ‘bias’

The common law requires that as solicitors we avoid conflicts of interest in relation to clients; and that a magistrate avoids any question of partiality or ‘bias’ as it is known in law. Both involve conflicts of interest; but it is the bias question which predominates here. I tried to explain a little about this in https://dbfamilylaw.wordpress.com/2014/09/06/reflections-on-law-of-bias/ . It is a cardinal principle of administrative law that no decision-maker – and that includes judges, inquiry members and civil servants – is biased. The principle, for inquiry members is restated (please forgive me for repeating this) in Inquiries Act 2005 s 9:

9 Requirement of impartiality

(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a)a direct interest in the matters to which the inquiry relates, or

(b)a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

(3)If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4)A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.

I assume Mrs Woolf told the Home Office of all matters relevant to her impartiality under s 9(2). I know a few people are likely to press the Home Office for details of what has been said by her.

Liverpool had Lord Scarman (a House of Lords judge); the David Kelly inquiry had Lord Hutton (another House of Lords judge); the press had Lord Justice Leveson (Court of Appeal). Waterhouse J was a highly experienced family court judge. I will leave Mrs Woolf to assert how she says her ‘expertise’ (s 8(1)(a) above) matches theirs: their judicial skills, and (in this context) her detailed knowledge of children law.

Do abused children – survivors and those still suffering – deserve anyone with lesser judicial skills than people such as Lord Scarman or Lord Justice Leveson; or an inquiry with lesser intellectual weight?