What many people don't realise is that the justice system relies on a large number of part time judiciary. The county courts, employment tribunals and even the High Court plug the gaps in the their judicial resources by deploying lots of judges who are still practising lawyers and sit part time. Miss Recorder Cherie Booth QC is one such famed example. The problem often with these judges is that they have wide ranging professional connections to lots of people which mean that they are sometimes conflicted out of hearing many cases. I recall attending the Employment Tribunal at Truro presided over by a local employment law solicitor who who had acted for so many people in the small world of that corner of Cornwall that he had to constantly recuse himself due to a perception of bias. We are reminded of all this because the Court of Appeal yesterday
(Re A (CHILDREN) (2010) CA (Civ Div) (Thorpe LJ, Smith LJ, Patten LJ) 23/9/2010) had to set aside some findings of fact made against a father in a Children Act case because the Recorder had an ongoing professional relationship representing the Guardian of the Child (in a different case) who had supported the mother's version of events. Difficult to understand why the Recorder did not recuse hereself - especially as she did withdraw at a later stage in the case. The Court of Appeal gives the following good advice to judges:
(2) (Per curiam) A judge would be wise to err on the side of caution and reveal at the outset anything that might lead to recusal. (3) (Per curiam) On an application for recusal it was incumbent on ajudge to explain in sufficient detail the professional or other relationship that was challenged.
One judge has just recused himself in the highly important judicial review of the legal service commission's family law tendering process.
ReplyDeletePerhaps the most famous example of a judge who should have recused himself but did not was Lord Hoffmann in the Pincohet case.
It is an interesting area because judges frequently sit on cases in which counsel appear from the same Chambers in which the judge practised and, in the case of part-time judges, may still have a tenancy in Chambers.
Of course, for years, local magistrates' courts heard cases against persons and the local "beaks" knew everything about the defendant despite any pretence to the contrary. As local justice areas (formerly petty sessional divisions) became larger then the likelihood of this happening diminished.
Ah yes, Beatson J I believe, gave a personal reference for a partner in one of the intervening firms. Replaced by Moses LJ.
ReplyDeleteBarristers appear before fellow members of Chambers sitting as Recorders all the time. I have done it at least twice. But then we are independent sole traders who keep Chinese walls between our practices, unlike solicitors in a firm.