Lord Justice McFarlane :
- The central issue in the present appeal can be stated shortly. It is as follows:
Can a
witness
in Family proceedings,
who
is the subject of adverse judicial findings and criticism, and
who
asserts that the process in the lower court
was
so unfair as to amount to a breach of his/her rights to a personal and private life under ECHR Art 8, challenge the judge's findings on appeal?
If so, on
what
basis and, if a breach of Article 8 is found,
what
is the appropriate
remedy?
Whilst
the issue may be shortly stated, I fear that the answer necessitates a
relatively
elaborate analysis of a number of different legal issues. Also, because of the nature of the matter under appeal, it is necessary that this judgment takes the unusual course of providing only the barest of background detail as to the underlying proceedings and the content of the judge's judgment, about
which
those
who
are adversely affected by it
wish
to appeal.
Background: A summary
- The judgment at the centre of the appeal
was
given
within
ongoing care proceedings
relating
to a number of
children
by a circuit judge, sitting as a Deputy High Court judge. The judgment,
which
is extensive,
relates
entirely to fact-finding in
relation
to allegations of sexual abuse made
with
respect
to a number of family members by "C" an older sibling of the
children
who
were
the subject of the proceedings. In addition to the
children's
parents and the
children
themselves, two male family members had been joined as parties for the fact-finding part of the proceedings as C had made specific allegations of sexual abuse against them. After a lengthy hearing and a very full analysis of all of the
relevant
material the judge found that none of C's allegations
were
proved. In coming to his conclusion he
was
critical of a range of professionals
who,
in various
ways,
were
involved
with
C in the extended period during
which
C's apparent account of sexual abuse developed.
- No party to the proceedings has sought to appeal against the judge's conclusion that the sexual abuse allegations
were
not proved.
Within
the proceedings the statutory threshold criteria in
Children
Act l989, s 31 had been met on grounds that are unrelated to the sexual abuse allegations at an earlier hearing. In the event, matters have now moved on and
we
have been told that all of the
children
are now back at home
with
their parents, the proceedings have concluded and there are no longer any live public law orders in place
with
respect
to any of the
children.
- In addition to dismissing the sexual abuse allegations, the judge felt driven to include in his fact-finding judgment a range of criticisms and findings as to the actions of the local authority, the
wider
group of professionals involved and, in particular, an individual social
worker
and an individual police officer, both of
whom
the judge proposed to name.
- Before moving on it is necessary to explain, and to a degree apologise for, the delay in concluding this appeal. The substantive appeal hearing took place over 3 days during November 2015 but
was
adjourned part-heard in order to allow SW to be
represented
by pro-bono counsel
who
had been identified before that hearing but too late to prepare for and undertake the presentation of her case in court at that stage. The
resumed
hearing
was
listed in February
2016,
but the listing had to be vacated due to the unfortunate indisposition of one of the members of the court. Thereafter, listing difficulties led to further delay and the case
was
not concluded until 16th June
2016.
Any delay since that time has been due to the time that it has taken to prepare the present judgment, for
which
we
apologise to all those
who
have been affected by it.
The focus of the appeal
- Permission to appeal
was
granted by this court to the local authority, the named social
worker
("SW") and the named police officer ("PO"). Their appeal, if successful,
will
lead to the passages complained of being excised from the judgment, it is therefore plainly inappropriate to offer any more than a mere gist of those matters
within
this judgment. On that basis, and in short, the complaint
relates
to the judge's finding that SW and PO, together
with
other professionals and the foster carer,
were
involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the
relevant
professional guidelines. The judge found that SW
was
the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court
with
respect
to an important aspect of the
child
sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a
result
of their professional interaction
with
her. In addition to the specific adverse findings made against the local authority, SW and PO also complain that there
was
no justification for the judge deploying the strong adjectives that he used in describing the scale of his findings in a judgment
which,
in due course, in its final form,
will
be made public.
- It is necessary to stress that the issues canvassed in this appeal
relate
entirely to process. This court has not been asked to analyse the evidence underpinning the judge's adverse findings nor to determine
whether
or not the judge
was
justified in criticising the professionals as he did. The central point raised by each of the three appellants is that the prospect of them being the subject of such adverse findings
was
made known to them, for the very first time,
when
the judge gave an oral "bullet point" judgment at the conclusion of the hearing. It is submitted that individual and collective adverse findings of the type that the judge
went
on to make in his judgment, did not feature at all in the presentation of the case of any of the parties and
were
not raised in any manner by the judge during the hearing. In short terms it is said that these highly adverse findings "came out of the blue" for the first time in the judgment. The findings both in nature and substance have the potential to impact adversely upon the standing of the local authority and/or the employment prospects and personal life of each of SW and PO, yet none of the three had been given any opportunity to know of or meet the allegations during the course of the trial process. They therefore seek a
remedy
from this court to prevent the inclusion of these adverse and extraneous findings in the final judgment that has yet to be handed down formally and published as the judge intended it to be.
Issues raised in this appeal
- Although, as I have already said, the central issue in the appeal can be shortly stated, it has become plain to this court that the route that these appellants must follow in order to satisfy the Court of Appeal that it is in a position to afford them the
remedy
that they seek is a route
which
is strewn
with
substantive and procedural legal landmines, the detonation of any one of
which
is likely to prevent the appellants
reaching
their goal. In order to set the scene I therefore propose in very short terms to describe the appellant's proposed route to a
remedy
and, in doing so, pinpoint each of the potential landmines to
which
I have made
reference.
- A core problem faced by all three appellants is that none of them seeks to challenge the judge's determination on the sexual abuse allegations themselves nor to challenge any particular court order that has been made by the judge. A further significant difficulty facing SW and PO is that they
were
no more than individual
witnesses
within
the proceedings; neither of them
was
"a party" nor "an intervenor" (
whatever
"an intervenor" might be). Against that background it
will
be necessary to consider how it is possible for the proposed appeal to succeed
within
the context of the statutory provision governing appeals from a deputy High Court judge sitting in the Family Court
which
is set out in the Matrimonial and Family Proceedings Act l984, s31K:
"s 31K (1) Subject to any order made under section 56 (1) of the Access to Justice Act l999 (Power to provide for appeals to be made instead to the High Court or County Court, or to the Family Court itself), if any party to any proceedings in the Family Court is dissatisfied
with
the decision of the court, that party may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by Family Procedure Rules."
- Having set section 31K(1) out it is only necessary at this stage to draw attention to the two key phrases, namely "any party" and "the decision of the court". The appellants submit that each of these two phrases must be given sufficiently
wide
interpretation to allow each of them to be
regarded
as "a party" and for the judge's adverse findings against them to be
regarded
as part of "the decision of the court". In
respect
of their case
regarding
"decision" the appellants accept that they must successfully navigate around the judgments of this court in Cie Noga SA v Australia and New Zealand Banking Group [2002]
EWCA
Civ
1142: [2003] 1
WLR
307 ("Cie Noga").
- Despite the difficulties apparently placed in their
way
by the black letter
words
of s 31K and this court's decision in Cie Noga, the appellants submit that this court is bound by the terms of Human Rights Act l998, s 6 (Acts of Public Authorities) and s 3 (Interpretation of Legislation), to apply a construction of s 31K that is sufficient to allow their challenges to the judge's judgment to pass through the s 31K appeal gateway so that this court must provide a
remedy
if their grounds of complaint are found to be justified.
- HRA l998, s 6(1) provides that:
"It is unlawful for a public authority to act in a
way
which
is incompatible
with
a Convention right."
The appellants, rightly, assert that the court is "a public authority" and is therefore bound by s 6(1).
- HRA l998, s 3(1) provides:
"So far as it is possible to do so, primary legislation and subordinate legislation must be
read
and given effect in a
way
which
is compatible
with
the Convention rights."
- As appellants, SW and PO assert that the judge's adverse findings against them are sufficient to engage the right to
respect
for their private life, home and correspondence under ECHR, Art 8. They submit that the right to private life under Article 8 encompasses both substantive and procedural elements, and that the process adopted by the judge
with
respect
to these serious adverse findings
was
so unfair as to amount to a breach of their Article 8 rights. The local authority,
which,
of course, as a corporate body, does not have Article 8 rights, submits that if the procedural gateway has to be interpreted in the
wide
manner argued for on behalf of SW and PO, it must be so enlarged for all-comers thereby allowing the local authority to complain about the fairness of the process in the lower court, albeit outside the context of Article 8. Alternatively the local authority asserts that the lack of fair process complained of amounts to a breach of the right to a fair trial under ECHR, Article 6.
- If the appellants, or any of them, satisfy this court that it has jurisdiction to hear the appeal that they
wish
to bring, and satisfy the court that the complaint of lack of fair process is made out, it
will,
finally, be necessary to consider
what
remedy
applies.
- As
will
become apparent, after announcing the adverse findings for the first time in the "bullet point" judgment, the judge
was
persuaded to embark upon a series of hearings during
which
he
received
detailed submissions made on behalf of each of these three appellants and others as to the precise content of the judgment. Some text
which
was
contained in the original draft came to be excised by the judge as a
result
of that process. There is, therefore, a need to consider that post initial judgment process as a potential "
remedy"
in this or other cases as
well
as considering
what
remedy,
if any, the appellants are now entitled to from this court.
- Having thus set the scene, it is now necessary to descend to detail and look at each of the legal conundrums that I have described.
"A party"
- In order to evaluate
what
standing, if any, SW and PO may have to appeal to this court in these proceedings, it is necessary to consider
whether
any status
was
afforded to them at first instance. This issue does not, plainly, arise
with
respect
to the local authority
who
were
the applicants before the judge.
- It is common ground that both SW and PO
were
no more than
witnesses
during the fact-finding hearing itself. However, once the judge had issued the first draft of his judgment and the level of judicial criticism had become apparent, they sought, and
were
granted, the right to be
represented
in the proceedings and/or make
representations
to the judge as to the content of the final version of his judgment. SW and PO submit that this change in their status
was
sufficient to establish each of them as a "party" to the proceedings, or, at least, "an intervenor" (if that is a different status) albeit that no formal order
was
issued naming them as additional parties.
- The
researches
of counsel during the hearing before this court have
revealed
a lack of precision and consistency in defining the meaning of "a party" in
civil
and family litigation.
- County Courts Act l984, s 147(1) defines "party" as follows:
""party" includes every person served
with
notice of, or attending, any proceeding,
whether
named as a party to that proceeding or not"
Those
wide
terms establish that, for county court proceedings at least, it is not necessary for a party formally to be named in a court order or on the court
record.
Simply "attending" is sufficient. No definition of "attending" is offered, however, common sense dictates that mere presence
within
the courtroom, for example as a
witness,
would
be insufficient. To hold otherwise
would
expand the status of being "a party" to a
wide
band of individuals in an unnecessary and unhelpful
way.
- Senior Courts Act l981, s 151(1) defines "party" as:
""party", in
relation
to any proceedings, includes any person
who
pursuant to or by virtue of rules of court or any other statutory provision has been served
with
notice of, or has intervened in, those proceedings"
In contrast to the County Courts Act l984 definition no
reference
is made in s 151 to "attending". In addition to the CCA l984 definition, the SCA l981 provision includes an individual
who
"has intervened in" the proceedings. No definition of "intervened in" is provided.
- No definition of "party" or any
related
term is provided
within
the Matrimonial and Family Proceedings Act l984,
which,
in its amended form, makes provision for the business of the Family Court. Similarly, no such definition appears in the
Children
Act l989.
- In the Family Procedure Rules 2010 ("FPC 2010") rule 7.10 makes provision for additional parties (normally a "co-
respondent")
to matrimonial proceedings or
civil
partnership proceedings; those provisions have no direct
relevance
to this case.
- FPR 2010, Part 12 applies to "
children
proceedings" and its provisions
relate
directly to the proceedings in the present case. FPR 2010, r 12.3 sets out to establish "
who
the parties are" in
relation
to various categories of proceedings
relating
to
children.
The rule lists, in a tabular form, those
who
will
be "applicants" or "
respondents"
for each category of proceeding. The proceedings in front of the judge in the present case
were
proceedings for a care or supervision order under CA l989, s 31. In such a case the "applicants"
will
be "any local authority; the National Society for the Prevention of Cruelty to
Children
and any of its officers; or any authorised person". The "
respondents"
will
be "every person
whom
the applicant believes to have parental
responsibility
for the
child"
and "the
child".
- In addition to those
who
are automatically an applicant or a
respondent,
FPR 2010, r 12.3 (3) provides:
"3) Subject to rule 16.2, the court may at any time direct that –
(a) any person or body be made a party to proceedings; or
(b) a party be
removed"
These provisions are, in common
with
all other parts of FPR 2010, subject to "the overriding objective" in r 1.1
which
is to enable "the court to deal
with
cases justly, having
regard
to any
welfare
issues involved".
"Intervenor"
- Although the
word
"intervenor" is not used
within
the FPR 2010, or, indeed, earlier versions of the rules, the concept of there being an "intervenor" status, falling short of full party status, has been accepted on a case by case basis in the family jurisdiction. One example, at Court of Appeal level, is the case of
Re
S (Care:
Residence:
Intervenor) [1997] 1 FLR 497. The case involved an individual
who
had been named as a perpetrator of sexual abuse against his niece in the course of care proceedings. He
was
not otherwise a party to the proceedings. The court (Butler-Sloss and Evans LJJ and Sir Iain Glidewell) considered that it
would
be very difficult for the fact-finding process to take place
without
this individual and that, if he
were
to give evidence, he
required
a level of involvement in the process over and above that of simply being called into the
witness
box. In the leading judgment Butler-Sloss LJ said:
"
Without
going into the advantages or disadvantages or indeed the propriety of
witnesses
generally being
represented,
it does seem to me in this case that Mr K ought to have his own
representation
to protect his interests otherwise he
will
not have a say in the final conclusions to
which
the judge may come if the judge is called upon to make findings of fact in
relation
to these allegations of sexual abuse. If Mr K is not
represented
and is not a party and has not been allowed to intervene and the allegations are found proved, albeit the fact are very old, the consequences for Mr K are very serious…in the circumstances therefore of this case I think that to a limited degree Mr K ought to have his own
representation
to advise him as to the propriety of
what
he should do and, if he does give evidence, to lead his evidence in chief, to cross-examine Miss SH or any other
witness
who
is giving evidence about any aspects of impropriety or sexual abuse or other abuse that may be made against him."
Butler-Sloss LJ concluded:
"Therefore I
would
in the rather unusual circumstances of this case allow the appeal but not make Mr K a party to the proceedings. There is no need to do that. He does not
wish
to be an applicant; he does not
wish
to be a
respondent.
What
he
wishes
to do is to intervene to protect himself from these serious allegations made against him and he should be therefore entitled to intervene and take part in the proceedings to the limited extent that his case is before the court and no further."
The Law
Report
records
that the court order gave the appellant "leave to intervene in proceedings, but not be a party".
- More
recently
in
Re
B (Care order: Adjournment of fact finding hearing) [2009]
EWCA
Civ
1243; [2010] 2 FLR 1445 the Court of Appeal (
Ward
and
Wall
LJJ) allowed an appeal from an individual
who
had been given leave to intervene to meet sexual abuse allegations against him in the course of care proceedings to
which
he
was
not otherwise a party. Although the Court of Appeal considered that the individual should have been made a full party to the proceedings at an earlier stage, the court endorsed his status as "intervenor" and for him to be
represented.
A further
recent
example of the utility of joining a person (or in that case a newspaper) as an "intervenor" rather than as a "party" is to be found in my Lord, Sir James Munby's judgment as President of the Court of Protection in
Re
G (Adult) [2014] EWCOP 1361 at paragraph 51.
- These limited
references
in the
reported
cases to an 'intervenor' status
within
proceedings under CA 1989 accords
with
the experience of this court and of the experienced counsel appearing in this appeal. The fact that the FPR 2010 do not make any express
reference
to intervenors does not negate or invalidate the
well-established
practice of family courts affording rights akin to party status to an individual for a specific or limited part of the proceedings. If it is necessary to describe an 'intervenor' in terms
which
are compatible
with
FPR 2010, Part 12 this can easily be achieved by
reference
to r 12.3(3) (see para 27 above) and r 12.3(4):
'12.3(4) If the court makes a direction for the addition or
removal
of a party under this rule, it may give consequential directions about:
(a) the service of a copy of the application form or other
relevant
documents on the new party;
(b) the management of the proceedings.'
An 'intervenor', in the sense used in
Re
S and
Re
B, can be seen simply as a person
who
has been added as a 'party' for a specific part of the proceedings and
whose
role in the proceedings (and exposure to the case papers) is controlled and managed using the powers
within
r 12.3(4).
Who
can appeal?
Civil
Procedure Rules l998, Part 52, provides a complete procedural code governing
civil
appeals. Since the hearing of this appeal CPR 1998, Part 52 has been extensively
revised
and a new Part 52 has been substituted
with
effect from 3rd October
2016
by the
Civil
Procedure (Amendment No 3) Rules
2016
(SI
2016/788).
Insofar as I now need to make
reference
to CPR 1998, Part 52, it is fortunately the case that the new rules are both in substance and by rule number identical to their immediate predecessors.
- An appeal may be brought by "an appellant" or "a
respondent"
each of
whom
requires
permission to appeal (unless the appeal
relates
to one of the narrow categories for
which
no permission is
required)
as established by CPR l999 r 52.3. The
word
"appellant" is defined in r 52.1 (3)(d) as follows:
"'appellant' means a person
who
brings or seeks to bring an appeal"
The
word
"
respondent"
has the following slightly more elaborate definition in r 52.1(3)(e)
"'
respondent'
means –
(i) a person other than the appellant
who
was
a party to the proceedings in the lower court and
who
is affected by the appeal; and
(ii) a person
who
is permitted by the appeal court to be a party to the appeal"
- The interpretation of "appellant" and "
respondent"
in Part 52
was
considered by the Court of Appeal in MA Holdings Ltd. v George
Wimpey
UK Ltd. and Tewkesbury Borough Council [2008]
EWCA
Civ
12. Lord Justice Dyson (as he then
was)
giving the lead judgment,
with
which
the other member of the court, Lloyd LJ, agreed, considered the position of the applicant MA
who
had not been served
with
notice of the proceedings and had not applied to be joined as a party. The proceedings
related
to a dispute under the Town and Country Planning Act l990. None of the parties to the original proceedings sought to appeal the first instance decision. MA, however,
wished
to appeal and served a notice of appeal setting out
relevant
grounds. In the course of "some preliminary observations", Dyson LJ said (at paragraph 9):
"It
would
be surprising if the effect of the CPR
were
that a person affected by a decision could not in any circumstances seek permission to appeal unless he
was
a party to the proceedings below. Such a rule could
work
a
real
injustice, particularly in a case
where
a person
who
was
not a party to the proceedings at first instance, but
who
has a
real
interest in their outcome,
wishes
to appeal, the losing party does not
wish
to appeal and an appeal
would
have
real
prospects of success."
- Dyson LJ
went
on to note that old Chancery practice had held that any person may appeal
with
the leave of the court if he could by any possibility have been made a party to the original action by service.
Reference
was
also made to the availability of the inherent jurisdiction in this context (
Warren
v Uttlesford District Council [1996] COD 262 (Judge J)).
- Dyson LJ concluded his preliminary observations (at paragraph 12) as follows:
"It is common ground that this decision [
Warren
v Uttlesford DC] correctly stated the law that
was
applicable pre-CPR. It is clear, therefore, that there could be rare circumstances
where,
in the exercise of its inherent jurisdiction, the court should permit a person
who
had an interest in the outcome of [TCPA l990] section 287 proceedings to join the litigation so as to avoid an injustice to him. In the pre-CPR era, a person in the position of MA "could by possibility" have been made a party to the proceedings at first instance. That
would
have been sufficient to give the court jurisdiction to grant MA leave to appeal in a case such as this, although for the
reasons
given by Judge J, it is highly likely that an application to be added as a party in the proceedings in the court below
would
have failed."
- Dyson LJ then moved on to consider the definitions of "appellant" and "
respondent"
in the CPR. He held that the meaning of appellant as "a person
who
brings or seeks to bring an appeal"
was
not confined to an individual
who
was
a party to the proceedings in the lower court. A
respondent
is either a person
who
was
a party to the proceedings in the lower court, or (under r 52.1(3)(e)(ii)) is a person
who
is permitted by the appeal court to be a party to the appeal. Dyson LJ held that this
was
not confined, plainly, to a person
who
had been a party to the proceedings in the lower court and that the provision "simply gives the court a
wide
power to permit any person to be a party to the appeal as a
respondent,
whether
or not he
was
a party to the proceedings in the lower court". Dyson LJ stated his conclusion at paragraph 22 as follows:
"In my view, the question of jurisdiction turns on the true meaning of "appellant" in rule 52.1(3)(d)
which,
for the
reasons
I have given, does not
require
that the person seeking to appeal
was
a party in the proceedings in the lower court. I do not consider that it is necessary to have
regard
to CPR 19. Even if an application by MA under rule 19.2 and 19.4 to be added as a party in the proceedings below
would
have failed, that fact cannot shed any light on the true meaning of "appellant". I accept, however, that the fact that such an application
was
not made may be
relevant
to the question
whether
MA should be given permission to appeal."
In view of the clear conclusion
reached
on the interpretation of the
relevant
rules, there
was
no need to consider
whether
the court could permit MA to appeal in the exercise of its inherent jurisdiction.
Are SW and/or PO entitled to appeal?
- It is common ground that neither SW nor PO
were
full parties to the proceedings. In the period following
release
of the first draft judgment, however, the following steps
were
undertaken:
i) One month after the hearing at
which
the judge had orally delivered the 'bullet-point judgment', the first full draft judgment
was
circulated and the court held a directions hearing some days later. Having heard submissions on behalf of the parties and the police, the judge directed that the draft judgment should be disclosed to those
who
were
the subject of adverse criticism in order for them to prepare submissions and be
represented
at the next hearing some ten
weeks
later;
ii) At the next hearing PO and three other professionals
were
represented.
SW
was
present but un-
represented.
The court heard submissions from or on behalf of each of those individuals;
iii) An amended draft judgment (
which
is the current draft)
was
then circulated some two months later and it
was
accompanied by a separate judgment given at that time purporting to explain the changes that the judge had made to the draft;
iv) At a further hearing the court heard submissions as to the issues of identification of professional
witnesses
and anonymisation of the judgment,
which
was
followed by a
reserved
judgment in
which
the judge ruled that some professionals
would
be anonymous but that SW and PO
would
be named in the public version of the judgment.
- In the light of those developments, and insofar as the status of "intervenor" is
recognised
by the family courts, it is clear to me that both SW and PO achieved "intervenor" status, and
were
therefore additional 'parties' to the proceedings under r 12.3(3)+(4),
with
respect
to the stage of the proceedings
relating
to the terms of the judgment.
- In the course of his submissions Mr Frank Feehan QC,
who
is counsel for one of the family members and
who
is the sole voice opposing these appeals, conceded that once the judge had invited PO and SW to make submissions upon the draft judgment it
was
impossible to argue that they had not by then become 'parties'. In addition he suggested that,
where
a
witness
applies to be made a party in order to make submissions in
relation
to specific findings in a judgment, but that application is
refused,
the
witness
would
then have been a party to that specific application (as applicant) and
would
have a route to appeal against the
refusal.
- Mr Feehan's concessions on this point
were
well
made. For the
reasons
that I have given, I consider that both SW and PO
were
each a 'party' to the proceedings sufficient to afford them a right of appeal under MFPA 1984, s 31K.
- In any event, in the light of the clear ruling by this court in MA Holdings Ltd, it is, in my view, unnecessary to establish
with
certainty the precise procedural status of SW and PO in the lower court in order to determine
whether
or not they may act as "appellants" in this court. On the interpretation of r 52.1(3)(d) given in MA Holdings Ltd it is clear that this court may entertain an appeal from SW and/or PO irrespective of
whether
they
were
formally made a party (or intervenor) in the lower court.
- Finally on this point, for
reasons
that I
will
describe in due course, if, for some
reason,
an individual fails to achieve the status of an 'appellant' either by a straight-forward application of the rules and s 31K, or via the more flexible route of MA Holdings Ltd, in circumstances
where
it is established that an individual's rights under ECHR, Art 8 have been breached by the outcome of the proceedings in the lower court, then this court has a duty under HRA 1998, s 3 to
read
down s 31K and the court rules in such a manner as to afford that individual a right of appeal.
- In conclusion, therefore, on the initial question of
whether
either of these two potential appellants are, as a matter of procedure, entitled to seek to appeal to this court my answer is in the affirmative
with
the
result
that they have successfully circumnavigated the first potential barrier to their
respective
appeals.
- The question of party status
was
not an issue
with
respect
to the local authority and it therefore follows that all three appellants can be heard on appeal.
A decision/determination/order/judgment
- The second procedural hurdle facing all three appellants, including the local authority, is the question of
whether
an appeal is possible
where
the only target of the appeal
relates
to subsidiary internal findings of the judge set out in his judgment, and does not
relate
to any specific order that he made.
- The jurisdiction of the Court of Appeal
Civil
Division is established by statute. Senior Courts Act l981, s 16 provides as follows:
"16 (1) Subject as otherwise provided by this or any other Act …or as provided by any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, the Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of the High Court."
- County Courts Act l984, s 77 provides for appeals from the County Court as follows:
"77 (1) Subject to the provisions of this section and the following provisions of this Part of this Act, and to any order made by the Lord Chancellor under section 56(1) of the Access to Justice Act 1999, if any party to proceedings in the county court is dissatisfied
with
the determination of a judge or jury, he may appeal from it to the Court of Appeal in such manner and subject to such conditions as may be provided by
Civil
Procedure Rules."
With
respect
to family proceedings, as has already been noted, provision for appeal to the Court of Appeal is made by Matrimonial and Family Proceedings Act l984, s 31K and is stated to
relate
to dissatisfaction '
with
the decision of the court'.
- The three statutory provisions
referred
to above illustrate the disparity of language used to describe
which
aspect of the outcome of the lower court's proceedings is a susceptible target for appeal: "order", "judgment", "determination" or "decision". The leading authority on the distinction to be drawn between those aspects of a lower court's conclusions
which
are properly susceptible to appeal, and those
which
are not, is the case of Cie Noga SA v Australia and New Zealand Banking Group [2002]
EWCA
Civ
1142; [2003] 1
WLR
307. The proceedings
related
to a preliminary factual determination as to
whether
or not a figure of $100 million had been agreed and/or included in "a settlement agreement" in a multi-million pound commercial transaction. The Court of Appeal (
Waller,
Tuckey and Hale LJJ) concluded that a first instance decision on a preliminary issue
was
a "judgment" or "order",
within
the meaning of SCA l981, s 16(1), or a "determination"
within
the meaning of CCA l984, s 77(1). The Court of Appeal had jurisdiction to hear an appeal from such a decision even if the decision
were
limited only to a finding of fact.
Where,
however, the lower court had gone on to make a decision in
relation
to the legal consequences of that finding of fact in favour of one party, the successful party
would
not be entitled to appeal from the factual finding simply because it did not like the
reasons
for the decision that had, in the event, gone in its favour. In such circumstances it might be appropriate for the court to encapsulate the finding of fact in a declaration
which
would,
in ordinary terms, establish it as a "judgment", "order" or "determination".
Waller,
LJ, giving the lead judgment in Cie Noga,
was
required
to consider earlier authority in the form of two cases, both, as it happens, in the family jurisdiction: Lake v Lake [1955] P 336 and
Re
B (A Minor) (Split Hearings: Jurisdiction) [2000] 1
WLR
790.
- In Lake v Lake,
which
related
to a husband's petition for divorce on the grounds of his
wife's
cruelty and adultery, the outcome of the proceedings, formally
recorded
in the court order,
was
that the petition and the
wife's
cross petition
were
both dismissed. The
wife's
application to appeal, however, solely
related
to a finding that the judge had made
when
giving
reasons
for his judgment to the effect that she had committed adultery. The Court of Appeal in Lake held that the right of appeal did not extend to a finding or statement in the
reasons
given by the court for the conclusion that it had
reached.
In the course of the leading judgment, Lord Evershed MR said:
"…I think there is no
warrant
for the view that there has by statute been conferred any right upon an unsuccessful party, even if this
wife
can be so described, to appeal from some finding or statement – I suppose it
would
include some expression or view about the law –
which
may be found in the
reasons
given by the judge for the conclusion at
which
he eventually arrives, disposing of the proceeding."
Later Lord Evershed continued:
"…it may
well
be the
wiser
course for the judge trying such a case to
refrain
from expressing any concluded view on the issue of adultery, because that view
would
be in effect unappealable and because of its possible consequences."
- In
Re
B a local authority sought to appeal against detailed findings of fact given in a judgment at the conclusion of a preliminary stage in care proceedings under
Children
Act l989, s 31. The Court of Appeal (Dame Elizabeth Butler-Sloss P, Otton and Schiemann LJJ) held that the judge's
reasoned
judgment, despite not being incorporated in a formal order, amounted to a determination of a preliminary issue and
was,
albeit that it
was
on a preliminary issue, determinative of the proceedings as a
whole
and therefore
within
the ambit of CCA l984, s 77. The Court of Appeal therefore had jurisdiction to entertain the local authority's appeal
without
having to
wait
for the conclusion of the next stage of the care proceedings.
- In Cie Noga
Waller
LJ interpreted the two earlier authorities on the following basis [at paragraph 27]:
"Many appeals are brought on the basis of an order made by a judge prior to the formal document being drawn up, and in
Re
B demonstrates that the correct
reading
of Lake v Lake is not that some formal document
recording
the order must exist. Lake v Lake properly understood means that if the decision
when
properly analysed and if it
were
to be
recorded
in a formal order
would
be one that the
would-be
appellant
would
not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal. That is in my view consistent
with
Re:
B. That this is so is not simply by virtue of interpretation of the
words
"judgment" or "order", but as much to do
with
the fact that the court only has jurisdiction to entertain "an appeal". A loser in
relation
to a "judgment" or "order" or "determination" has to be appealing if the court is to have any jurisdiction at all. Thus if the decision of the court on the issue it has to try (or the judgment or order of the court in
relation
to the issue it has to try) is one
which
a party does not
wish
to challenge in the
result,
it is not open to that party to challenge a finding of fact simply because it is not one he or she does not like."
Having
referred
to the circumstances in
Re
B,
where
the appeal
was
simply against the findings of fact made at the first stage of a 'split hearing',
Waller
LJ continued [at paragraph 28]:
"In
Re
B is a good example of a decision on preliminary issues of fact. Furthermore the case having been adjourned, and the facts making a difference as to
what
might flow from the adjournment, the facts in Mr Pollock's
words
were
pregnant
with
legal consequences. If however in that case the court had gone on to make a decision in
relation
to the legal consequences
which
one party
would
not seek to challenge, in my view that party
would
not be entitled simply to appeal the findings because it did not like the
reasons
for the decision in his or her favour. It is in that context that it might be appropriate for the court at first instance to consider
whether
some declaration should be granted to provide a "judgment" or "order" or "determination"
which
could be the subject of an appeal. If for example the findings of fact might be
relevant
to some other proceedings, (and Mr Pollock accepted this), it might be appropriate to make a declaration so as to enable a party to challenge those findings and not find him or herself prejudiced by them. The findings
would
still be pregnant
with
legal consequences. It is to go beyond the scope of this judgment to consider precisely
what
circumstances might allow for the granting of a declaration
where
findings of fact might affect other proceedings."
- As I shall explain more fully, Mr Charles Geekie QC, leading Miss Gemma Kelly as counsel for the local authority in the present case, places substantial
weight
upon that passage from
Waller
LJ's judgment in support of a submission that
where
findings are 'pregnant
with
legal consequences', albeit in a context outside the issues the court has to try in the particular case, a person aggrieved by such findings should have the opportunity to appeal against them.
- More
recently
this court has considered these questions in the context of findings of fact in care proceedings in the case of
Re
M (
Children)
(Judge's findings of fact: jurisdiction to appeal) [2013]
EWCA
Civ
1170. The appellant local authority sought to challenge the
refusal
of the first instance judge to make findings of sexual abuse against an individual
who
had been an intervenor in the care proceedings. The local authority did not seek to challenge the
residence
order and supervision order made at the conclusion of the proceedings. The Court of Appeal (Longmore, Underhill and Macur LJJ) dismissed the appeal at a preliminary stage, on the basis that the court did not have jurisdiction to entertain it. The appeal, made prior to the establishment of the Family Court,
was
from a county court and governed by CCA l984, s 77. Having
reviewed
the
relevant
case law Macur LJ, giving the leading judgment, concluded (at paragraph 21) as follows:
"The principles of appellate jurisdiction to be derived from Cie Noga are identified in paragraphs 27 and 28 of the judgment as indicated above. They are clear. Findings of fact do not comprise determination, order or judgment unless they concern the issue upon
which
the determination of the
whole
case ultimately turns or are otherwise subject of a declaration
within
the order."
Macur LJ dismissed submissions that the judge's findings could be brought
within
the definition of "an order" because the order included a
recital
to the effect that "there
was
no sexual misconduct on the part of the intervenor". Macur LJ held that the
recital
"is demonstrably otiose in terms of being "an order"". She continued at paragraph 26:
"Even if this paragraph is properly classed as a declaration it is certainly not a declaration as envisaged by the court in Cie Noga. There is no finding of fact "pregnant
with
legal consequences" (See para 28). Its presence in the order does not
rescue
the argument that this appeal should continue."
Paragraph 30 includes Macur LJ's final conclusion:
"The final order in this case
was
that sought by the Appellants. There is no order, judgment or determination for appeal. In that there is any declaration, it does not merit scrutiny."
- The combined effect of the decisions of this court in Cie Noga and in
Re
M establish a formidable hurdle in the
way
of the three appellants to these proceedings. Mr Geekie QC seeks to meet that hurdle by submitting that the passages in the judge's judgment that are complained of are, indeed, findings of fact that are likely to have serious legal consequences and are therefore "pregnant
with
legal consequences" in the manner described in Cie Noga. Each of the individuals and agencies
who
seek to complain about the judge's findings have roles and duties
relating
to
child
protection and are accountable to their employers or other professional bodies. There is, submits Mr Geekie, a
real
possibility that
civil
proceedings may follow from the judge's conclusions.
- A second line of attack adopted by Mr Geekie arises from the specific
refusal
of the judge in the lower court to encapsulate his adverse findings in the form of a declaration. The local authority argue that the judge
was
wrong
not to grant a declaration. His decision on that point is therefore, they submit, a proper subject for appeal and, if that appeal is successful, the adverse findings
will
form part of a declaration and that declaration can, properly, on the basis of Cie Noga, be considered by this court.
- Finally, Mr Geekie submits that it is a fundamental principle of justice that, if adverse judicial findings are to be made against a person or body, that person or body should have sufficient notice of that prospect and a sufficient opportunity to take part in the process leading to those findings. Amongst the range of cases upon
which
he
relies
is R v Home Secretary for the Home Department, ex parte Doody [1994] 1 AC 531 in
which,
in the context of a mandatory life prisoner's right to make
representations
as to
release
on licence, Lord Mustill described the
requirements
of fairness as "essentially an intuitive judgment" and
went
on to say, specifically:
"Fairness
will
very often
require
that the person
who
may be adversely affected by the decision
will
have an opportunity to make
representations
on his own behalf either before the decision is taken
with
a view to producing a favourable
result;
or after it is taken,
with
a view to procuring its modification; or both. Since the person affected usually cannot make
worthwhile
representations
without
knowing
what
factors may
weigh
against his interests fairness
will
very often
require
that he is informed of the gist of the case
which
he has to
answer."
- Mr Geekie's final submission, therefore, is that the strict approach in Cie Noga should not be applied
where
a judge steps right outside the 'four pillars of the case', or the confines of the proceedings before the court, to make findings of fact that have legal consequences in another context. It is submitted that the test should take account of the seriousness or otherwise of the legal consequences and consideration of
whether,
as a matter of basic justice, an individual
will
be so adversely affected by the controversial findings that he or she should have a
remedy.
- Mr Geekie later
refined
his submission by suggesting that there should be a threshold test triggering a right of appeal based on the question 'are the facts found
within
the four corners of the case and
was
it necessary for the judge to make those findings in order to fulfil the judicial task in the case?'. If so, it
would
be unlikely that a
witness
who
is criticised in the course of those findings
would
have a right of appeal. If not, then the court should consider:
a)
Whether
the process
was
procedurally fair; and
b) The significance of any legal consequences that may flow for the potential appellant as a
result
of the findings.
- Mr Ben Brandon, counsel for PO, endorsed Mr Geekie's suggested threshold and submitted that, in considering
what
did, or did not, fall
within
the 'four corners' of the case, the question
was
whether
the case turned on those findings. In his submission the findings against PO and SW in this case are
wholly
outside the four corners of the case.
- In the context of potential "legal consequences", Mr Brandon draws specific attention to the
requirement,
as he submits it is, for the judge's findings
with
respect
to PO, if they stand, being "disclosable" material in
relation
to any criminal proceedings in
which
PO may be involved as a police officer in the future on the basis of the approach described in R v Guney (Erkin Ramadan) (Disclosure) [1988] Cr. App. R. 242. It is also at least arguable that these findings
would
amount to "
reprehensible
behaviour" (R v O'Toole (Patrick Francis) [2006]
EWCA
Crim 951) and, he submits, they are also capable of being adduced as evidence of "bad character" pursuant to Criminal Justice Act 2003, s 100 by the defence in a criminal trial. Mr Brandon
went
on to explain that it is common practice amongst constabularies in England and
Wales
to
remove
officers
who
are the subject of adverse judicial findings from the "evidential chain" as their participation in the investigation and prosecution of offences may jeopardise the prospect of convicting those
whom
they are investigating. If this occurred, PO
would
not be permitted to be concerned in obtaining evidence in criminal investigation thereby compromising her ability to continue to
work
as a police officer.
- For SW, Mr Zimran Samuel,
who
acts on a pro bono instruction and to
whom
the court is most grateful for taking on this substantial case, has informed the court that SW
who,
following these proceedings
went
to
work
for a different local authority, has been suspended as a consequence of the judge's findings and has been unable to
work
for any other authority since that time. He argues that that circumstance alone is sufficient to amount to a legal consequence sufficient to bring her appeal
within
the boundaries established by Cie Noga. Mr Samuel adopted the submissions that had been made on behalf of the local authority and PO before making detailed submissions on behalf of SW focussed upon the specific findings of fact made against her. It is not necessary in this judgment to consider that level of detail, although the court fully understands the importance to SW of the points that have been made on her behalf.
- For the
respondent
family member
who
opposes the appeals, Mr Frank Feehan QC
relies
firmly on Cie Noga in support of his core submission that this court simply does not have jurisdiction to entertain these appeals. He cautions against eliding issues of "fairness" and professional
reputation
with
the separate question of jurisdiction.
- In considering these submissions it is important to bear in mind the possible consequences for holding that the parties before this court may have an avenue of appeal against the adverse findings that have been made against them. One obvious constituency
which
might also seek to use any such avenue of appeal
would
be expert
witnesses
who
have been the subject of negative findings by a trial judge in
civil
or family proceedings. Mr Geekie sought to persuade the court that there
was
a distinction to be drawn between criticism of an expert,
who
will
almost certainly have been squarely cross-examined on the basis of the very criticisms that then come to be made in a judgment so that there has been a fair process in terms of permitting the expert to have their 'say' on the issues, and the present case
where,
on his submission, the process
was
wholly
unfair and the direct professional consequences for the appellants are extreme. Mr Geekie
was
at pains to stress that the local authority's case
was
focussed upon the lack of a fair process prior to the making of adverse serious adverse criticism. He submitted that once the judge began to contemplate that there had been a conspiracy between the professionals to manufacture the allegations, he should have given the parties, and the key
witnesses,
some form of
warning;
the judge's failure to do so in this case prevented the parties and those
witnesses
from having a fair opportunity to answer that criticism. It
was,
it is said, simply too late for the judge to raise these very important matters by announcing his findings in that
respect
for the first time in the 'bullet point' judgment.
- Before coming to any conclusion upon
whether
or not the adverse findings of fact made by the judge in the present case may be the proper subject of an appeal, it is necessary to consider the impact of the ECHR upon that issue.
ECHR, Article 8 right to private life
- Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms provides:
"1. Everyone has the right to
respect
for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority
with
the exercise of this right expect such as is in accordance
with
the law and is necessary in a democratic society in the interests of national security, public safety or the economic
well-being
of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
- No issue
was
taken before this court as to the potential applicability of ECHR, Art 8, in the context of private life, to the professional lives of SW and PO. It is not necessary to do more than draw attention to the
relevant
domestic and Strasbourg case law on the point.
- The position is perhaps best summarised by Baroness Hale in R (
Wright)
v Secretary of State for Health [2009] UKHL 3; [2009] 1 AC 739 at paragraph 30:
'As long ago as X v Iceland (1976) 5 DR 86, [Art 8]
was
held to "comprise also, to a certain degree, the right to establish and develop
relationships
with
other human beings". In Niemietz v Germany (1992) 16 EHRR 97, para 29, the court held:
"it
would
be too
restrictive
to limit the notion to an 'inner circle' in
which
the individual may live his own personal life as he chooses and to exclude therefrom entirely the outside
world
not comprised
within
that circle.
Respect
for private life must also comprise to a certain degree the right to establish and develop
relationships
with
other human beings."
Baroness Hale then
went
on to describe a number of cases
where
claims
were
made
with
respect
to breach of Art 8 private life rights by those in the former
Warsaw
pact states
who
had been accused by the current authorities of being former officials in the previous, now discredited, communist
regimes
(for example by being members of the security services). In Sidabras v Lithuania (2004) 42 EHRR 104, for example, it
was
acknowledged that the finding that an individual had been a former KGB officer
would
not only ban him from public sector employment, but also from many private sector posts. The Strasbourg court held that these circumstances fell
within
the ambit of Art 8 for the purpose of the prohibition of discrimination in the enjoyment of Convention rights in Art 14.
- Baroness Hale continued her summary of the law at paragraph 32 of R (
Wright):
'An actual breach of article 8
was
found in Turek v Slovakia (2006) 44 EHRR 861. The consequences of being listed as an 'agent' of the state security agency
were
must less far-
reaching
than in Sidabras but
were
nevertheless an interference
with
the applicant's right to
respect
for his private life. The procedural aspect of article 8 (
which
dates back at least to
W
v United Kingdom (1987) 10 EHRR 29) therefore
required
"the decision-making process involved in measures of interference must be fair and such as to ensure due
respect
[for] the interests safeguarded by article 8" (see para 111). The applicant
was
unable to disprove the allegation that he
was
an agent because he
was
not allowed access to the guidelines governing inclusion on the list.'
- More
recently,
in R (L) v Commissioner of Police of the Metropolis [2009] UKSC 3; [2010] 1 AC 410, Lord Hope, having endorsed Baroness Hale's summary of the law in R (
Wright),
went
on to
record
(at paragraph 24) that:
'Excluding a person from employment in her chosen field is liable to affect her ability to develop
relationships
with
others, and the problems that this creates as
regards
the possibility of earning a living can have serious
repercussions
on the enjoyment of private life: see Sidabras v Lithuania, para 48. She is entitled also to have her good name and
reputation
protected: see Turek v Slovakia, para 109. As Baroness Hale said in R (
Wright),
para 36, the fact that a person has been excluded from employment is likely to get about and, if it does, the stigma
will
be considerable.'
- If, as is accepted here, the ability of SW and/or PO to continue in their chosen careers
will
be adversely affected by the terms of the judge's judgment if it is allowed to stand (
whether
or not it is made public),
what
are the procedural
requirements
in
relation
to the Art 8 right to private life?
- In Turek v Slovakia the Strasbourg court stated:
'111. The Court
reiterates
that,
whilst
Art 8 of the Convention contains no explicit procedural
requirements,
the decision-making process involved in measures of interference must be fair and such as to ensure due
respect
of the interests safeguarded by Art 8.
112. The Court
reiterates
that the difference between the purposes pursued by the safeguards afforded by Art 6(1) and Art 8 of the Convention,
respectively,
may justify examination of the same set of facts under both Articles. In the circumstances of the present case the Court finds it appropriate to examine the fairness of these proceedings under Art 8 of the Convention.
113. In particular, the Court
will
examine
whether
the procedural protection enjoyed by the applicant at the domestic level in
respect
of his right to
respect
for his private life under Art 8 of the Convention
was
practical and effective and consequently compatible
with
that Article.
114. …. However, the Court must ascertain
whether,
taken as a
whole,
the proceedings, including the
way
in
which
the evidence
was
dealt
with,
were
fair for the purposes of Art 8 of the Convention.'
- In R (Tabbakh) v Staffordshire and
West
Midlands Probation Trust [2013] EWHC 2492 (Admin), Cranston J held that the procedural rights contained in Art 8 could be engaged in the process of fixing the
release-on-license
conditions for a prisoner and
went
on to consider the nature of the procedural rights themselves at paragraphs 56 to 62. Having made express
reference
to Turek v Slovakia (in particular paragraphs 111 and 113), Cranston J continued at paragraph 58:
'58.
What
the Strasbourg court
requires
is that the decision-making process involved in measures of interference,
when
considered as a
whole,
must be fair and such as to afford due
respect
to the interests safeguarded by article 8.
Regard
is to be had to the particular circumstances of the case, notably the serious nature of the decisions taken: R v United Kingdom (2011) 54 EHRR 28, para 75 (involvement of biological parents in adoption). In particular circumstances it may be essential that the parties can access information
relied
on by the authorities to be able to put forward in a fair or adequate manner those matters militating in their favour: Dolhamre v Sweden [2010] 2 FLR 912, para 116 (
children
taken into care after accusations of abuse, later
withdrawn).
59. These Strasbourg principles of effective participation in the decision-making process to protect article 8 rights have been applied by the domestic courts: see R (H) v A City Council [2011] BLGR 590, para 51; Turner v East Midlands Trains Ltd [2013] ICR 525, paras 42-45.
60.
What
is
required
by
way
of procedure in any particular case turns on the extent of interference
with
those rights and the nature of the interests at stake: R (BB) v Special Immigration Appeals Commission (No 2) [2013] 1
WLR
1568, para 52, per Lord Dyson MR. That is the same approach as the common law; the standards of fairness are not immutable. In a
well-known
passage in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 560 Lord Mustill made that point, identifying as factors the statutory background and the context of the decision. Fairness, he said, very often
required
that a person adversely affected by a decision have an opportunity to make
representations
on his own behalf "either before the decision is taken
with
a view to producing a favourable
result,
or after it is taken,
with
a view to procuring its modification, or both." Lord Mustill added that since the person affected usually cannot make
worthwhile
representations
without
knowing
what
factors may
weigh
against his interests, fairness very often
required
that a person be informed of the gist of the case to be answered.'
- In an earlier case of R v Secretary of State for the Home Department, Ex pte Hickey (No 2) [1995] 1
WLR
734, the Court of Appeal considered the question of
whether
details of a police inquiry, established by the Secretary of State following criminal convictions to assess a possible
reference
to the Court of Appeal Criminal Division, should be disclosed to the defendants to
whom
it
related.
The applicants sought declarations that they should have been given fuller disclosure of information from the police investigation. The court considered the matter in terms of the common law rather than in terms of the ECHR. Simon Brown LJ, giving the main judgment, held that fairness
required
giving the individual
who
would
be affected by a decision the right to address matters that might be held against him before the decision-maker made his or her decision (at page 744):
'… there seem to me compelling
reasons
why,
whatever
the practical difficulties to be
resolved,
petitioners should, before the Secretary of State's decision, be given a specific opportunity to make effective
representations
upon
whatever
material has been
revealed
by his inquiries. … If the inquiries appear to
resolve
[points that might cast doubt on the safety of the conviction] against the petitioner, elementary fairness surely
requires
that he should then have the opportunity to address these fresh obstacles in his path before an adverse decision is taken against him. … [Advance disclosure] is
required
in the interests both of fairness and informed decision-making.
Without
it an adverse decision may not be right; and even if it is, it
will
certainly not be fair.' (emphasis in original)
- By
way
of
record,
the protection afforded to
witnesses,
as such, by Article 8 has been accepted by the Divisional Court in R(B) v Crown Court at Stafford [2006] EWHC 1645 (Admin) and by the Supreme Court in
Re
W
(
Child
Witness)
[2010] UKSC 12 at paragraph 22. .
- As the local authority case cannot directly engage
with
an argument based on breach of Art 8, it fell to Mr Brandon on behalf of PO to set out the main human rights submissions for the appellants, a role
which
he discharged by making clear, helpful and
well-argued
submissions.
- Mr Brandon submits that the judge's findings against PO
will
have a direct impact upon her professional
reputation
and her employment and, as such, are
readily
within
the private life rights protected by Art 8. There is, he submits, an interference
with
those rights because of the impact on her ability to perform her office as a constable. The question therefore arises
whether
the judge's actions are necessary and proportionate.
Where
there is an absence of procedural fairness, the fact-finding process, insofar as it
relates
to PO and SW,
will
be arbitrary and the consequent denial of procedural protection cannot be justified. Mr Brandon submits that the process adopted by the judge did not meet even the most minimal procedural
requirements.
- Mr Brandon rightly drew the court's attention to the Supreme Court decision in R (L) v Commissioner of the Police for the Metropolis. He submitted that the rights claimed by PO and SW in the present appeal fall squarely
within
Lord Hope's description of Art 8 given in paragraph 24 of R (L) (see paragraph 70 above) and he also lays stress upon the concluding paragraph of Lord Hope's judgment at paragraph 46. R (L) concerned the
responsibility
of the police
when
a
request
is made for an Enhanced Criminal
Records
Certificate on an individual:
'46. In cases of doubt, especially
where
it is unclear
whether
the position for
which
the applicant is applying
really
does
require
the disclosure of sensitive information,
where
there is room for doubt as to
whether
an allegation of a sensitive kind could be substantiated or
where
the information may indicate a state of affairs that is out of date or no longer true, chief constables should offer the applicant an opportunity of making
representations
before the information is
released.
In R (X) v Chief Constable of the
West
Midlands Police [2005] 1
WLR
65, para 37 Lord
Woolf
CJ
rejected
Wall
J's suggestion that this should be done on the ground that this
would
impose too heavy an obligation on the chief constable. Here too I think,
with
respect,
that he got the balance
wrong.
But it
will
not be necessary for this procedure to be undertaken in every case. It should only be
resorted
to
where
there is room for doubt as to
whether
there should be disclosure of information that is considered to be
relevant.
The risks in such cases of causing disproportionate harm to the applicant outweigh the inconvenience to the chief constable.'
Based on paragraph 46, Mr Brandon submitted that the implication of Lord Hope's
words
in the context of the present case is that the judge should have given PO and SW the opportunity to make
representations
before
reaching
his conclusion as to their actions.
- Drawing on the domestic and Strasbourg case-law to
which
I have already made
reference,
Mr Brandon submitted that the basic procedural protection
required
by Art 8 included (depending on the circumstances):
a) Disclosure of
relevant
court documents;
b) Access to other
relevant
material;
c) A right to make
representations
and to do so before an adverse decision is made;
d) A right for the person against
whom
a material adverse finding may be made to have the issue put to them.
- In opposition to the appeal, Mr Feehan submitted that Art 8 rights to private life have no application to an individual
who
attends court in a public role, for example as a police officer or social
worker,
to give evidence in public law proceedings. He sought to make good this submission by
reference
to X v Y [2004]
EWCA
Civ
662 at paragraphs 37 to 40 and paragraphs 50 and 51. X v Y concerned an employee
who
had failed to inform his employer of a caution for gross indecency and
who,
when
the caution subsequently came to the employer's notice,
was
dismissed. The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal each
rejected
the claimant's assertion that, in
relying
upon the caution,
which
arose from circumstances outside his
working
life, there had been a breach of his Art 8 rights
when
read
with
Art 14.
Reference
was
also made to Pay v UK (2009) 48 EHRR SE2,
which
involved a probation officer
whose
claim, that his involvement in running an organisation
which
organised 'bondage, domination and sadomasochism' performances and events
were
part of his Art 8 private life and therefore of no concern to his employers,
was
rejected.
- I am bound to observe that Mr Feehan's submissions fell
well
short, to my mind, of establishing the proposition that, by coming to give evidence in court proceedings conducted in private, a professional
witness
was
in some manner
removing
themselves from any protection that the private life rights in Art 8 may provide for them.
- Irrespective of his submissions on the public nature of the role of a
witness,
Mr Feehan did concede that,
whilst
Art 8 does not give rights to a
witness
in a public role during the process of giving evidence, the potential effect of a judgment upon the erstwhile
witness'
private life may engage Art 8 and
require
the court to give the
witness
the opportunity to answer any criticisms that have been made. It is, however, Mr Feehan's case that the judge
was
justified in making findings beyond those strictly needed to determine the care order application and that the process undertaken by the judge following the initial bullet-point judgment
was
sufficient to allow the appellant's to make submissions and be heard on the specific criticisms that the judge had, by then, identified. Mr Feehan submits that the lengthy and detailed process adopted by the judge therefore
remedied
any potential breach of SW's and PO's Art 8 rights.
- In
response
Mr Geekie directly challenged Mr Feehan's assertion that the judge had foreseen the need for a fair process, had promulgated a draft judgment and invited observations upon it. Mr Geekie, to my mind,
was
able to demonstrate from
relevant
court orders and from the terms of the bullet-point judgment itself that the judge had simply delivered the bullet-point judgment on the basis that a full version of that judgment
would
follow in due course; he had not at that time anticipated the need for any process of further submissions.
- More generally, Mr Geekie submitted that it
was
unhelpful for each of the three statutory avenues of appeal to use different language and he invited this court, if possible, to interpret the three provisions together so as to produce a single coherent
result.
The answer to the question 'can I appeal against findings of fact made in a judgment?' should, he submitted, be the same for all comers, irrespective of
whether
they are able to
rely
upon human rights arguments.
- Mr Geekie argued that the decision in MA Holdings provided a useful means of moulding the three statutory routes together and he suggested that the principled
response
would
be to achieve a unified view of the three statutes that is also compatible
with
Art 8.
Do SW and PO enjoy protection
with
respect
to Art 8 private life rights?
- Mr Samuel made a powerful case, based upon the detailed criticisms made of SW in the judgment and the impact that these have had upon SW's health and employment, for holding that her Art 8 rights to private life have already been substantially compromised by the criticisms made of her in the judge's judgment, notwithstanding the fact that it has yet to be published. That this is so is, no doubt, in part due to the fact that as part of the bullet-point judgment (and therefore at a time
when
SW knew nothing of the judge's criticisms of her) the judge directed that the local authority that
was
by then employing SW 'must be alerted to my findings as a matter of urgency'.
We
were
told by Mr Geekie that this
was
an instruction that his instructing local authority took as
requiring
them as a matter of urgency to inform any other local authority that SW may be
working
for about the judge's findings. In the event it
was
apparently CAFCASS
who
informed SW's current employer of the findings.
- The timing of the judge's instruction for SW's employer to be informed is to be noted in the context of
whether
or not the judge considered that he
was
engaged, at that stage, in undertaking a fair process by
which
to allow SW and PO to address his critical findings. The plain implication is that that
was
not the case and that the judge
was
simply announcing, in headline form, his concluded findings at a stage prior to any of the parties suggesting that the court should embark on hearing submissions from those professionals
who
had been marked out for judicial criticism.
Unfairness
- It is plainly necessary to consider
what
elements of procedural fairness are
required
by Art 8 in this context. In my view, however, for the purposes of deciding this appeal, it is unnecessary to go beyond
what
must be an essential factor to be included on any list of the elements of procedural fairness, namely giving the party or
witness
who
is to be the subject of a level of criticism that is sufficient to trigger protection under Art 8 (or Art 6) rights to procedural fairness proper notice of the case against them.
- Mr Brandon submits that it is a basic element of fairness for a judge to ensure that criticisms of the nature that he came to find proved are put to the
witness
rather than appearing for the first time 'out of the blue' (to use Mr Brandon's phrase) in the judgment.
Reliance
is this
regard
is placed upon the Court of Appeal decision in Markem Corp v Zipher Ltd [2005]
EWCA
Civ
267,
which
was
a patent case that included an assertion of procedural unfairness. Lord Justice Jacob, giving the main judgment, drew attention to a 19th century House of Lords decision of Browne v Dunn (1894) 6 R 67. The case
report
of Browne v Dunn is sparse, but Jacob LJ sets out in full the
relevant
parts of their Lordships' opinions at paragraph 59 of his own judgment in Markem. Of particular note is the following in the speech of Lord Herschell LC:
'Now my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a case,
where
it is intended to suggest that a
witness
is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then,
when
it is impossible for him to explain as perhaps he might have been able to do if such questions had been put to him, the circumstances
which
it is suggested indicate that the story he tells ought not to be believed, to argue that he is a
witness
unworthy of credit. My Lords, I have always understood that if you intend to impeach a
witness
you are bound,
whilst
he is in the box, to give him an opportunity of making any explanation
which
is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing
with
witnesses.'
Other members of House of Lords gave speeches that expressly concurred
with
the Lord Chancellor on this point and the authority of Browne v Dunn
was
fully endorsed by this court in the course of its decision in the Markem case.
- The statement of the law in Browne v Dunn must however be
read
alongside the authoritative description of the role of a judge given by Lawton LJ in Maxwell v Department of Trade and Industry [1974] QB 523 at page 541 B-D:
"The
researches
of counsel have not produced any other case
which
has suggested that at the end of an inquiry those likely to be criticised in a
report
should be given an opportunity of
refuting
the tentative conclusions of
whoever
is making it. Those
who
conduct inquiries have to base their decisions, findings, conclusions or opinions (
whichever
is the appropriate
word
to describe
what
they have a duty to do) on the evidence. In my judgment they are no more bound to tell a
witness
likely to be criticised in their
report
what
they have in mind to say about him than has a judge sitting alone
who
has to decide
which
of two conflicting
witnesses
is telling the truth. The judge must ensure that the
witness
whose
credibility is suspected has a fair opportunity of correcting or contradicting the substance of
what
other
witnesses
have said or are expected to say
which
is in conflict
with
his testimony. Inspectors should do the same but I can see no
reason
why
they should do any more."
- During the detailed submissions made on behalf of PO by Mr Brandon and of SW by Mr Samuel,
we
were
taken to the transcript of the oral evidence
which
demonstrated beyond doubt that the matters found by the judge
were
not current, even obliquely,
within
the hearing or
wider
process in any manner. None of the key findings that the judge
went
on to make
were
put by any of the parties, or the judge, to any of the
witnesses
and there is a very substantial gap between the cross examination, together
with
the parties' pleaded lists of findings sought, and the criticisms made by the judge. In this
respect
this is not a matter that is finely balanced; the ground for the criticisms that the judge came to make of SW, PO and the local authority,
was
simply not covered at all during the hearing.
- For my part it became clear from
reading
the transcript that the cross-examination of SW and PO had been entirely conventional in the sense that it dealt
with
ordinary challenges made to the process of enquiry into the allegations of sexual abuse and
was
conducted entirely, to use Mr Geekie's phrase,
within
the four corners of the case. At the conclusion of the oral evidence, in closing submissions no party sought findings that
went
beyond those conventional challenges. At no stage did the judge give voice to the very substantial and professionally damning criticisms that surfaced for the first time in the bullet-point judgment.
- It can properly be said that by keeping these matters to himself during the four
week
hearing, and failing to arrange for the
witnesses
to have any opportunity to know of the critical points and to offer any answer to them, the judge
was
conducting a process that
was
intrinsically unfair.
- For my part, in terms of the decision in this appeal, it is not necessary to go further than holding that, unfortunately, this is a fundamental and extreme example of 'the case', as found by the judge, not being 'put' to SW and PO. However, out of
respect
for the thoughtful and more
widely
based submissions that have been made, and because the ramifications of this decision may need to be considered in other cases, I
would
offer the following short observations on other aspects of procedural fairness in the context of Art 8 in answer to the rhetorical question: '
what
should the judge have done?'.
Where,
during the course of a hearing, it becomes clear to the parties and/or the judge that adverse findings of significance outside the known parameters of the case may be made against a party or a
witness
consideration should be given to the following:
a) Ensuring that the case in support of such adverse findings is adequately 'put' to the
relevant
witness(es),
if necessary by
recalling
them to give further evidence;
b) Prior to the case being put in cross examination, providing disclosure of
relevant
court documents or other material to the
witness
and allowing sufficient time for the
witness
to
reflect
on the material;
c) Investigating the need for, and if there is a need the provision of, adequate legal advice, support in court and/or
representation
for the
witness.
- In the present case, once the judge came to form the view that significant adverse findings may
well
be made and that these
were
outside the case as it had been put to the
witnesses,
he should have alerted the parties to the situation and canvassed submissions on the appropriate
way
to proceed. One option at that stage, of course, is for the judge to draw back from making the extraneous findings. But if, after due consideration, it
remains
a
real
possibility that adverse findings may be made, then the judge should have established a process that met the
requirements
listed in paragraph 95 above.
Article 8: Conclusions
- In the light of the law
relating
to ECHR Art 8 as I have found it to be, it is clear that the private life rights of SW and PO under Art 8 of these individuals as
witnesses
would
be breached if the judgment, insofar as it makes direct criticism of them, is allowed to stand in the final form as proposed by the judge. The finding of breach of Art 8 does not depend on
whether
or not the judgment is published; the need to inform employers or prospective employers of such findings applies irrespective of
whether
the judgment is given
wider
publication. In short terms, the
reasons
supporting this conclusion are as follows:
a) In principle, the right to
respect
for private life, as established by Art 8, can extend to the professional lives of SW and PO (R (
Wright)
v Secretary of State for Health and R (L) v Commissioner of Police for the Metropolis);
b) Art 8 private life rights include procedural rights to fair process in addition to the protection of substantive rights (Turek v Slovakia and R (Tabbakh) v Staffordshire and
West
Midlands Probation Trust);
c) The
requirement
of a fair process under Art 8 is of like manner to, if not on all-fours
with,
the entitlement to fairness under the common law (R (Tabbakh)
referring
to Lord Mustill in R v Secretary of State for the Home Department, Ex Pte Doody);
d) At its core, fairness
requires
the individual
who
would
be affected by a decision to have the right to know of and address the matters that might be held against him before the decision-maker makes his decision (R v Secretary of State for the Home Department, Ex Pte Hickey (No 2));
e) On the facts of this case protection under Art 8 does extend to the 'private life' of both SW and PO for the
reasons
advanced by their
respective
counsel and
which
are summarised at paragraphs 61, 86 and 87;
f) The process, insofar as it
related
to the matters of adverse criticism that the judge came to make against SW and PO,
was
manifestly unfair to a degree
which
wholly
failed to meet the basic
requirements
of fairness established under Art 8 and/or common law. In short, the case that the judge came to find proved against SW and PO fell entirely outside the issues that
were
properly before the court in the proceedings and had been fairly litigated during the extensive hearing, the matters of potential adverse criticism had not been mentioned at all during the hearing by any party or by the judge, they had certainly never been 'put' to SW or PO and the judge did not raise them even after the evidence had closed and he
was
hearing submissions.
- As
will
be apparent from this analysis of the issues in the context of ECHR Art 8, I
regard
the process adopted by the judge in the present case to have fallen short by a very
wide
margin of that
which
basic fairness
requires
in these circumstances. The occasions on
which
such circumstances may occur, or develop during proceedings,
will,
I anticipate, be rare. This judgment should be seen by the profession and the family judiciary to be a particular, bespoke,
response
to a highly unusual combination of the following factors:
a) a judge considering himself or herself to be driven to make highly critical findings against professional
witnesses,
where
b) such findings have played no part in the case presented by any party during the proceedings, and
where
c) the judge has chosen not to raise the matters of criticism him/herself at any stage prior to judgment.
- The fact that, so far as can be identified, this is the first occasion that such circumstances have been brought on appeal may indicate that the situation that developed in the present case may be a vanishingly rare one. For my part, as the
reader
of very many judgments from family judges during the course of the past five years, I can detect no need
whatsoever
for there to be a change in the overall approach that is taken by judges.
- The present case is, unfortunately, to be
regarded
as extreme in two different
respects:
firstly the degree by
which
the process adopted fell below the basic
requirements
of fairness and, secondly, the scale of the adverse findings that
were
made. This judgment is, therefore, certainly not a call for the development of 'defensive judging'; on the contrary judges should
remain
not only free to, but also under a duty to, make such findings as may be justified by the evidence on the issues that are raised in each case before them.
Criticism of Expert
witnesses
- It is, unfortunately, sometimes the case that a judge in
civil
or family proceedings may be driven to criticise the professional practice or expertise of an expert
witness
in the case. Although
what
I have said
with
regard
to a right to fair process under ECHR, Art 8 or the common law may in principle apply to such an expert
witness,
it
will,
I
would
suggest, be very rare that such a
witness'
fair trial rights
will
be in danger of breach to the extent that he or she
would
be entitled to some form of additional process, such a legal advice or
representation
during the hearing. That this is so is, I suspect, obvious. The expert
witness
should normally have had full disclosure of all
relevant
documents. Their evidence
will
only have been commissioned, in a family case, if it is 'necessary' for the court to '
resolve
the proceedings justly' [
Children
and Families Act 2014, s 13(6)], as a
result
their evidence and their involvement in the case are likely to be entirely
within
the four corners of the case. If criticism is to be made, it is likely that the critical matters
will
have been fully canvassed by one or more of the parties in cross examination. I have raised the question of expert
witnesses
at this point as part of the strong caveat that I am attempting to attach to this judgment as to the highly unusual circumstances of this case and absence of any need, as I see it, for the profession and the judges to do anything to alter the approach to
witnesses
in general, and expert
witnesses
in particular.
- I should stress that in the previous paragraph I
was
expressly addressing the approach to be taken to an expert
who
attends court and gives evidence. I
would
not
wish
to be taken as saying anything to add to or alter the approach that is
required
before criticising a
witness
who
has not been called to give evidence, for
which
see Munby J's judgment in
Re
M (Adoption: International Adoption Trade) [2003] EHC 219 (Fam), [2003] 1 FLR 1111, paras 111-120.
Local authority: breach of fair trial rights
- I have thus far concentrated upon the case of SW and PO
with
respect
to fairness in the context of ECHR, Art 8 and the common law. The local authority is not able to engage
with
the rights established by Art 8, but it is entitled to the benefit of the right to a fair trial established by ECHR, Art 6 and to similar rights under the common law (for
which
see paragraph 89 above). During the hearing of this appeal no issue
was
taken to the effect that there
was
a distinction to be drawn on the facts of this case between the fair trial rights of the individuals, on the one hand, and the local authority on the other. Given the firm and clear view that I have
reached
as to the degree to
which
the process adopted here fell short of the standard of fairness to
which
those affected
were
entitled, it is unnecessary to do more than
record
that the same conclusion, in the context of Art 6 and the common law, must apply
with
respect
to the adverse findings made against the local authority
which
had not been canvassed during the hearing and
were
outside the issues in the case.
Remedy
The post-judgment process before the judge
- Having established that the rights to a fair process of each of these appellants had been breached by the findings announced by the judge in the first, bullet-point, version of the judgment it is necessary to consider
what
remedy
is, or should be, available to them. The question of
remedy
falls to be considered in two parts. Firstly,
whether
the steps taken before the judge after the bullet-point judgment to permit submissions and invite the court to
review
or
re-cast
its findings
were
a sufficient
remedy
and, secondly, if not,
what
remedy
is available on appeal.
- I have already summarised the process that
was
played out in the lower court after the judge had given the bullet-point judgment (see paragraph 37).
We
have been taken through the detail of the submissions that
were
made to the judge on behalf of the appellants. Although it is clear that the judge made some alterations in matters of detail, the final draft of the judgment in essence maintains the adverse findings that he had made and, in most
respects,
holds to the strong adjectives that he had deployed in describing them. In those circumstances, and because it is our intention not to disclose that level of detail in this judgment, it is neither necessary nor appropriate to explain the changes that
were
made. The question is
whether
the process that
was
followed after the bullet-point judgment provided an adequate
remedy
to the appellants sufficient to
redress
the unfair process that had preceded it. Before this court the appellants submit that it did not, but Mr Feehan submits that it did.
- Mr Geekie submits that the post-judgment process
was
wholly
insufficient to cure that matters that are complained of in this appeal for the following
reasons:
a) The matters complained of
went
far beyond that
which
was
necessary to decide the case;
b) The opportunity to
respond
came after a firm, not provisional, decision had been announced;
c) The mischief in this case
was
rooted in the lack of forensic examination of the matters complained of and
was
therefore simply not open to
redress
by any ex post facto submissions.
Mr Geekie's submissions
were
adopted and
repeated
on behalf of the other appellants.
- Mr Feehan draws attention to,
what
he describes as, the 'lengthy and detailed process' adopted after the bullet-point judgment in
which
full
written
and oral submissions
were
made on the disputed points, after
which
the judge modified his judgment and gave a judgment explaining his decisions on each of the matters of detail that had been raised. It
was,
submits Mr Feehan, a perfectly proper and sufficient process.
- Looking at this issue in general terms, it must, in some cases, be possible,
where
a court is contemplating making findings
which
may have arisen outside the original focus of the case, for the court to embark on a process
which
allows for those affected to make submissions and/or submit evidence in
relation
to those matters before final judgment is given. I have already described some of the basic elements in such a process at paragraph 95. For those additional steps to be an effective counter-balance to a process
which
might otherwise be seen as a
whole
to be unfair, they need, in my view, to be undertaken before the judge has
reached
a concluded decision on the controversial points.
Whilst
not impossible, it is difficult to conceive of circumstances
where
the overall fairness of the hearing could be
rescued
by any form of process after the judge has
reached
and announced his concluded decision.
Where
a court is considering making findings that have not, thus far, been foreshadowed in the proceedings I
would
suggest that, at the very least, the judge should alert the parties and, if necessary any affected
witness,
to the potential for such an outcome so that the steps in paragraph 95, and any other
relevant
additional matters, can be openly canvassed during the hearing and before any judgment is given.
- In the present case it is not possible to view the bullet-point judgment as anything other than a statement of the judge's concluded decision on these various matters. There is no indication that at the time that he gave the bullet-point judgment he
was
contemplating any additional process by
which
submissions or evidence
relevant
to those findings might be
received
by the court. To his credit, the judge did embark on
receiving
detailed submissions thereafter, but, for my part, it
was
simply too late for that procedure to
render
fair that
which
had become unfair; the die had already been cast by the announcement of the judge's firm conclusions in the bullet-point judgment.
Is there a
remedy
on appeal: conclusion on Cie-Noga
- Having already described the detailed submissions made by each party on the central question raised by the Cie-Noga case and other authority at paragraphs 45 to 64 above, it is now necessary to provide an answer and determine
whether
the Court of Appeal has jurisdiction to
receive
this appeal in circumstances
where
it may be difficult to cast the matters complained of a 'decision', a 'determination', an 'order' or a 'judgment'.
- In the light of the conclusion that I have now
reached
that the right to a fair trial under ECHR, Arts 8 or 6 of SW, PO and the local authority have been breached, the conclusion on the Cie-Noga issue must be determined
with
full
regard
to the right to an 'effective
remedy'
enshrined in ECHR, Art 13 and to the Human Rights Act 1998, ss 7 and 8.
- Article 13 of the ECHR,
which
is not a 'Convention right' so far as domestic law is concerned [HRA 1998, s 1(1)] provides that:
'Everyone
whose
rights and freedoms as set forth in this Convention are violated shall have an effective
remedy
before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.'
- The HRA 1998 seeks to provide an effective
remedy
in the UK, in compliance
with
Art 13, by s 7 and s 8. The
relevant
parts of s 7 are:
's 7 (1) A person
who
claims that a public authority has acted (or proposes to act) in a
way
which
is made unlawful by section 6(1) may:
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b)
rely
on the Convention right or rights concerned in any legal proceedings,
but only if he is (or
would
be) a victim of the unlawful act.
…
(6) In subsection (1)(b) 'legal proceedings' includes:
(a) …
(b) an appeal against the decision of a court or tribunal.'
- HRA 1998, s 9(1) provides that:
'Proceedings under s 7(1)(a) in
respect
of a judicial act may be brought only:
(a) by exercising a right of appeal;'
- Pausing there, a court is a public authority for the purposes of HRA 1998, s 6 (see s 6(3)(a)) and, by s 6(1), it is 'unlawful for a public authority to act in a
way
which
is incompatible
with
a Convention right'. In the present case I have, unfortunately, concluded that the High Court has acted in a
way
which
is incompatible, that is in breach of, the Convention rights of PO, SW and the local authority to a fair trial in
relation
to the adverse findings that
were
made against them. It is therefore open to the appellants to '
rely'
on their assertion that the High Court has acted unlawfully in 'any legal proceedings'
which
expressly include 'an appeal against the decision of a court or tribunal' (s 7(1) and (6)). Indeed, s 9(1) is explicit in providing that proceedings in
respect
of an assertion that a judicial act is unlawful under s 7(1)(a) may only be brought by exercising a right of appeal. Finally, HRA 1998, s 8(1) provides that:
'In
relation
to any act (or proposed act) of a public authority
which
the court finds is (or
would
be) unlawful, it may grant
relief
or
remedy,
or make such order,
within
its powers as it considers just and appropriate.'
- Cie-Noga,
which
was
a major commercial dispute, did not give rise to issues under the ECHR. That decision does not therefore close down the avenue of appeal that is argued for by these appellants. Although Mr Geekie has sought to persuade us that
we
should interpret Cie-Noga in such a
way
so as to allow this appeal to proceed, in my view it is unnecessary to do so. In simple terms, use of a route of appeal to permit a party, or person entitled to bring an appeal, to assert that there has been, or
would
be, an act unlawful by virtue of HRA 1998, s 6(1).
- The decision of this court in
Re
M (
Children),
which
was
a local authority's attempt to challenge a judge's decision not to make findings of fact,
which
relied
on Cie-Noga, is also a case
which
did not give rise to any issues under the ECHR.
- It is therefore unnecessary to hold that the Cie-Noga approach can be engaged in this case because it may be said that the judge's findings are 'pregnant
with
legal consequences' or some such phrase. That factor is
relevant,
but it is
relevant
to determining
whether
or not the individual's Art 8 private life rights are engaged and in
reviewing
the overall proportionality of establishing
whether
or not there has been a breach of those rights. It is also not necessary to use the rather contrived vehicle of the judge's
refusal
to grant a declaration in the terms of the adverse findings in order, in some
way,
to generate an 'order' or 'judgment' that can be the subject of any appeal. On the approach
which
I
would
adopt, the judge's findings themselves are a 'judicial act'
which,
on the facts of this case, is capable of being held to be 'unlawful' under HRA 1998, s 7(1) and therefore the proper subject of an appeal,
without
having to consider
whether
or not it is a 'decision', 'determination', 'order' or 'judgment'.
Remedy
on appeal
Where,
as I have found to be the case here, the adverse findings complained of have been made as a
result
of a
wholly
unfair process and
where,
again as here, the consequences for those
who
are criticised in those findings are both
real
and significant, it is incumbent on this court to provide a
remedy
and, so far as may be possible, to correct the effect of the unfairness that has occurred. In the present case
what
is sought is the
removal
from the judgment of any
reference
to the matters that
were
found by the judge against SW, PO and the local authority that fell outside the parameters of the care proceedings and had not been raised properly, or at all, during the hearing.
- Mr Feehan accepts, as I understand it, that if this court
reaches
the stage that, in my judgment, it has indeed
reached,
then
redaction
from the judgment must follow, subject to any submissions as to detail. I agree that that must be the case. So that there is no ambiguity as to
words
such as '
removal'
or '
redaction'
in this context, I make it plain that the effect of any change in the content of the judge's judgment that is now made as a
result
of the decision of this court is not simply to
remove
words
from a judgment that is to be published; the effect is to set aside the judge's findings on those matters so that those findings no longer stand or have any validity for any purpose. The effect is to be as if those findings, or potential findings, had never been made in any form by the judge.
Conclusion
- For all of the
reasons
that I have now given I hold that each of these appellants
was,
by the conclusion of the first instance process, a 'party' to the proceedings and that the Court of Appeal has jurisdiction to entertain their appeals on the basis that they each assert that the judge has acted in such a
way
so as to amount to a breach of their rights under ECHR, Arts 6 and/or 8 pursuant to HRA 1998, ss 7 to 9. I have further held that there
was,
most unfortunately, a
wholesale
failure to achieve a fair trial in
relation
to the matters that the judge
went
on to find proved against them,
which
are outside the parameters of the issues in the case and are the subject of this appeal.
- I therefore allow the three appeals and hold that, if my lords agree, those parts of the judge's judgment
which
record
those matters are to be set aside on the basis that they are to have no further validity and are to be
regarded
as if they had never been made.
Lord Justice Christopher Clarke:
- I agree.
Sir James Munby, President of the Family Division:
- I also agree, and
would
wish
to pay
respectful tribute to my Lord's magisterial judgment.