Sunday, 15 February 2015

That's the spirit....

The Prosecution have to prove that you did it....not enough that you actually did it...

Tuesday, 3 February 2015

Robust but unfair case managment

One for the files, to be dragged when the local circuit judge is having a bad day and is being robust but unfair.  Judgment here.

A Circuit Judge (His Honour Judge Dodds) sitting in the Fam Ct in Liverpool thought he would cut through the red tape by making a final care order at the first case management hearing - here is a flavour:

All the parties crumbled under the judge's caustically expressed views, and as a consequence, were unable to explain to the judge that the situation was more complicated than the one the judge clearly saw, and expressed. The judge viewed the case as one in which he had before him three children each of whom had been in care for well over a year, two of whom were in settled placements. The mother he saw had had a recent positive drugs test, and therefore in his mind, the inevitable outcome was the making of care orders. The judge said that all future placement decisions in relation to LW would be made by the local authority through the Looked After Children review process (LAC reviews). At one stage the judge referred to the mother as looking "upset and bewildered". It is hard to see how she could have looked otherwise given the course the proceedings were taking.  The judge gave neither a judgment nor reasons prior to making final care orders in relation to all three children.

The Judge thought he was on safe ground because MacFarlane LJ had refused permission to appeal a similar approach in an earlier case, but on this occasion he gave permission.  Robust, but not fair, said the Court of Appeal.

In the same week the Court of Appeal dealt with another case concerning this judge.  This is taken from the Lawtel summary (RE A (CHILDREN) (2015) CA (Civ Div) (Aikens LJ, Black LJ, King LJ) 29/01/2015):

The judge's unrestrained and immoderate language had to be deplored. The appeal would be allowed and the application remitted. It was to be hoped that the judge would read the transcript of the hearing and be embarrassed. Appointment as a judge was not a licence to be gratuitously rude to those appearing before him. It was to be emphasised that the instant comments related only to the instant matter.

Further I found this from 2014 about the same judge: T (A Child) [2014] EWCA Civ 929

 I conclude that the judge failed on this occasion to grapple with and engage upon a proper analysis of the issues here. He did not help himself by failing to have regard to the statutory structure.

Looks like there is a local problem which needs to be sorted out...............

In the instant case, Lewison LJ has some fine things to say which are worth keeping up your sleeve for deployment from time to time:

It has long been a fundamental principle of English law that justice must not only be done, but must be seen to be done. Where a judge has apparently made up his mind before hearing argument or evidence that principle has undoubtedly been breached. A closed mind is incompatible with the administration of justice. But in such cases it is always possible that justice itself has not been done either. As Lord Neuberger MR recently put it in Labrouche v Frey [2012] EWCA Civ 881 at [24]:

"Any experienced judge worthy of his office will have had the experience of coming into court with a view, sometimes a strongly held view, as to the likely outcome of the hearing, only to find himself of a very different view once he has heard oral argument."
Longer ago in John v Rees [1970] Ch 345, 402 Megarry J said:

"As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events."
Moreover where parties arrive at court expecting to participate in a hearing that is to deal only with procedural aspects of progressing a case towards a final hearing, it is quite wrong for the court, on its own initiative and without prior notice to the parties – let alone any invitation from any of them – to treat the procedural hearing as if it were the final hearing and to make such a drastic order as the judge made in the present case. Had a party invited the judge to make the order that he in fact made without notice to the other parties one would have described it as "an ambush". The fact that it came from the court makes it worse, not better.

Parties are also entitled to know why judges make the decisions that they do. This necessarily entails giving reasons for decision, not merely announcing conclusions. The reasons may be brief but they must be explanatory. Justice will not be done if it is not apparent to the parties why one has won and the other has lost: English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at [16].

In both civil and family cases the Court of Appeal has said on more than one occasion that it will uphold robust but fair case management decisions by first instance judges: Cherney v Deripaska [2012] EWCA Civ 1235 at [17], [30]; Re TG (a child) (care proceedings: biomechanical engineering evidence) [2013] EWCA Civ 5, [2013] 1 FCR 229 at [35], [36]. Both adjectives are important. Robustness cannot trump fairness.

Family cases, however inquisitorial and streamlined they may be, are not exempt from these basic principles. As the President put it in Re TG at [37]:

"The task of the case-management judge is to arrange a trial that is fair; fair, that is, judged both by domestic standards and by the standards mandated by arts 6 and 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1998) (the Convention)."
It was for these reasons, as well as those given by the President and Eleanor King LJ, that I joined in the decision to allow the appeal.

Sunday, 18 January 2015


I was wondering when the Purdah Period would kick in this year - that special pre-election period when HMG almost grounds to a halt, because making any big decisions which would prejudice an incoming govt of a new stripe (or at least different configuration in these times of coalition) is put on hold until a new Govt is formed.  I consulted the closest we have to a written constitution, The Cabinet Manual, but that is as clear as mud as to timing  (extract below) because the Cab Office issues guidance bespoke to each election.

Looking at previous guidance, 6 weeks before the election looks to be about the norm - so 26th March looks about right - which is 4 days before Parliament dissolves (which is now fixed by section 3 Fixed Term Parliaments Act 2011 as amended in 2013 by the Electoral Registration and Administration Act 2013) we have 9 weeks to go.......

Government activity between the start of an election period and polling day

2.28 In the period immediately preceding an election, the Cabinet Office publishes guidance on activities in the run up to polling day.

The Prime Minister writes to ministers in similar terms.

During this period, the government retains its responsibility to govern, ministers remain

in charge of their departments and essential business is carried on.24 Ministers continue

in office and it is customary for them to observe discretion in initiating any action

of a continuing or long-term character. This means the deferral of activity such

as: taking or announcing major policy decisions; entering into large/contentious

procurement contracts or significant longterm commitments; and making some

senior public appointments and approving Senior Civil Service appointments, provided

that such postponement would not be detrimental to the national interest or

wasteful of public money. If decisions cannot wait they may be handled by

temporary arrangements or following relevant consultation with the Opposition.

Friday, 16 January 2015


retires today:

His Honour Judge Brian John Barker QC retires as Senior Circuit Judge and the Recorder of London with effect from 16 January 2015.His Honour Judge Barker QC (70) was called to the Bar (G) in 1969, took Silk in 1990 and elected a Bencher in 1999. He was appointed a Recorder in 1985 and a Legal Member of the Mental Health Review Tribunal, Restricted Patients Panel, in 1993. He was appointed a Senior Circuit Judge in 2000, Common Serjeant of London in 2005 and the Recorder of London in 2013.

As Judge Barker did before, the current Common Serjeant will take up the reins:

The City of London Corporation has announced the appointment of His Honour Judge Nicholas
Hilliard QC as the next Recorder of London. Judge Hilliard, the current Common Serjeant, will take office in January 2015, in succession to His Honour Judge Brian Barker QC, who has served as Recorder of London since February 2013. In addition to duties as the senior judge of the Central Criminal Court (known as the ‘Old Bailey’), the Recorder of London is the Senior Law Officer of the City of London and officiates at key City elections. He also has official duties on State occasions where the City acts as host.

Sunday, 11 January 2015

Voltaire had it right.......

"It does not require great art, or magnificently trained eloquence, to prove that Christians should tolerate each other. I, however, am going further: I say that we should regard all men as our brothers. What? The Turk my brother? The Chinaman my brother? The Jew? The Siam? Yes, without doubt; are we not all children of the same father and creatures of the same God?"

Tuesday, 18 November 2014

David Holgate QC appointed High Court Judge...Goldring LJ retires but will carry on hearing Hillsborough Inquest

Joint Head of Landmark Chambers and oft sitting Deputy High Court Judge, David Holgate QC has been helped into the red judicial dressing they used to say.  He is to replace Ramsey J, although I would suspect not in the TCC, but in the Admin or Planning Court where he is more at home, although you never know......

Taking off the black and gold space suit is Goldring LJ who has retired from the C of A but not from being Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) for the purposes of the Hillsborough Inquest

The Queen has been pleased to approve the appointment of David John Holgate Esq QC to be a Justice of the High Court with effect from 1 December 2014 on the retirement of Mr Justice Ramsey.
The Lord Chief Justice will assign Mr Holgate to the Queen’s Bench Division.
Notes for editors
Mr Holgate, 58, was called to the Bar (M) in 1978 and took Silk in 1997. He was appointed a Recorder in 2002 and is approved to sit as a deputy High Court Judge.
Mr Justice Ramsey was called to the Bar (M) in 1979 and took Silk in 1992. He was appointed an Assistant Recorder in 1998, a Recorder in 2000 and a judge of the Queen’s Bench Division of the High Court in 2005.
Lord Justice Goldring retires as Lord Justice of Appeal with effect from 10 November 2014. His appointment as Assistant Coroner for South Yorkshire (East) and West Yorkshire (West) will continue until the completion of the inquests into those who died as a result of the Hillsborough disaster.