Crime and Courts Bill [Lords]

John Hemming Excerpts

Monday 14th January 2013 Commons Chamber

[John Hemming (Birmingham, Yardley) (LD)]

There are some very good things in this Bill, but while I declare my interest in justice for families and concern about miscarriages of justice in the family courts, I have to say that it is also a missed opportunity. Lord Bingham’s excellent book “The Rule of Law” identifies eight principles for the rule of law. The first two are that the law should be accessible and not depend upon judicial discretion. That underlines that law should be comprehensible to non-lawyers and hence it should be possible to identify miscarriages of justice even when appeals are not allowed by the Court of Appeal. The Court of Appeal should not be seen as having a form of papal infallibility.

My academic qualifications are in science rather than law, and that is where my concern about family court proceedings comes from. Rachel Pullen’s case—I recently assisted her to send it to the Grand Chamber of the European Court of Human Rights—is a perfect example of that. She was deemed on the basis of a single expert report to have a significant learning disability and not to have the capacity to instruct a solicitor. I am, however, lucky enough to have had access to a second expert report, the comments of her GP and an IQ assessment for employment, and to have met her. All those things point to the original expert being plainly wrong. However, the case has been considered by the county court, the Court of Appeal, the House of Lords Judicial Committee and the initial Chamber of the European Court of Human Rights without that being picked up.

Sadly, that case is not unique. I have spoken previously in Westminster Hall on 21 March—at column 244WH—about other people whose mental capacity has been wrongly removed from them and I will not repeat those details now. If a case can travel through the appellate system to Strasbourg without the scientific facts being properly determined or even open to challenge, there is a serious problem.

A more recent case is unique because the mother kept her capacity, having faced its removal after an allegation of querulous paranoia by her barrister. She had been asked to spend £3,880 on an expert’s fee, even though the NHS had previously found no diagnosable conditions and her employer stated that she seemed fine. Nevertheless, she managed to win the battle as litigant in person with the assistance of a McKenzie friend. That does, however, raise serious questions about equality of arms. Nothing in the Bill will improve the situation when many people have their capacity wrongly removed or improve the quality and accountability of scientific expert evidence. There are two possible solutions: a Daubert procedure would assist for a case-by-case review, while allowing academic access to secret proceedings, as I suggested in my family justice private Member’s Bill, would provide a level of quality control currently lacking.

The proposal in the Bill to allow proceedings to be broadcast could help to improve the integrity of the legal system. Early-day motion 536 refers to a case heard on 2 May. Initially, the McKenzie friend who assisted the mother in that appeal told me it had been allowed, but after I chased it for six weeks’, a transcript was found stating that it had been lost, which caused me concern as I had been told that it had been allowed. I therefore wrote to the court in July requesting that I be allowed to listen to the official recording, but I got no response.

Hence in October I wrote to the Minister. I then had a response from both the Court and the Minister saying that the rules had been changed and that I could not now listen to the hearing. I wrote asking for the reasons, and it was only in late December that I was told by the judicial office that the Judicial Executive Board had decided not to allow people to listen to official recordings. Its argument was that in theory a recording in open court could include legally privileged material. I would argue that someone speaking in open court who knows that everything is being recorded would not expect the conditions needed for privilege. The judicial office has also said that the JEB is not subject to the Freedom of Information Act, and hence we have no idea who participated in the meeting that made this decision or when it was taken.

To me that looks like a cover-up, but we do not know. If it is, we need to know who was involved, how high it went and why. It is puzzling that people have failed to say when this rule change happened. If the pronouncement of the judgment was broadcast, under clause 28, we would have an independent copy of the hearing and would be able to check why there was a discrepancy between the report of the hearing and the official transcript. Another thing missing from the Bill is a proposal to make the JEB clearly subject to the Freedom of Information Act. It is arguably caught by the Judicial Studies Board being subject to FOI, but that is not made explicit in the Act.

The difficulty in obtaining transcripts of judgments is an important problem that is causing difficulties in ensuring that the appellate system operates properly. There were two cases in Birmingham recently where there was no transcript on the file. It took almost three months to obtain the transcript in one of these cases. The Bill does nothing about this. Furthermore, an appeal from the family proceedings court to the county court can exhaust domestic proceedings. That might be good for anyone wishing to take a case to Europe, but it raises a further question about the integrity of the legal system if the Court of Appeal cannot look at something before it leaves the domestic jurisdiction. The Bill, in creating a single family court, might deal with this, but it is a matter of detail that needs to be sorted out.

I have helped litigants in person with three cases that involved appeals in the Court of Appeal where the appeal was allowed. I will not go into the details, because I do not have time, but all the appeals were allowed. One can have no certainty that any of these appeals would have gone before the Court without my involvement, and I am not a lawyer. I see many cases that I think would win appeals, but it is simply the procedural complications of getting the paperwork together, including access to the original case files and judgments, that prevents this.

I am also aware of a number of cases where a party is frightened to appeal because they are likely to face the judge in the Court of First Instance again and fear the use of judicial discretion to punish them for appealing. To me, appeals that have the potential to be allowed but which are not heard are miscarriages of justice just as much as the case referred to in early-day motion 835—a case where the parents were banned from talking to the media in any way. The Bill does nothing to deal with any of those situations.

The Bill does deal with conflicts of interest relating to judges—in paragraph 8 of schedule 9—but it remains the case that a firm of solicitors can act for parents in one case against a local authority and act for the same local authority in a second case, even with the same individual solicitor doing the work. That is a clear conflict of interest and gives rise to what is known as repeat player prejudice. I have seen a number of cases where this conflict of interest appears to have had an effect on the advice given and the consequent outcome for parents. A social worker previously told me how he had colluded with parents’ solicitors to ensure that the parents lost. However, this conflict of interest appears to be tolerated by the system, and the Bill proposes no modification.

The House of Commons often does not manage to scrutinise proposals effectively where there is not a proper party or adversarial division. This, even if I rushed my speech, is one of those areas.