JUDICIAL BIAS AND THE ADVOCATE STANDING UP FOR THE CLIENT: AN INTERESTING EXAMPLE
There are some passages in the judgment of Mr Justice Singh in the Employment Appeal Tribunal decision of Nawaz -v- Docklands Buses Ltd Appeal No. UKEAT/0104/15/DM that go beyond the ambit of employment law and are of general application.
“…he was, entirely properly in our view, trying to do the best that he could on behalf of his lay client, something which is in the best traditions of the Bar in this country. Advocates must be able to do their job fearlessly and independently without fear of intimidation. “
The applicant was bringing an application that the Employment Judge recuse themselves on the grounds of apparent bias. This application was made before the final decision was reached. The judge refused to recuse themselves. The EAT allowed the applicant’s appeal and held that the Judge should have recused themselves because of apparent bias.
There is dispute between the various persons concerned about exactly how many interventions were made by the Employment Judge during, for example, the cross-examination of the Claimant and other witnesses who gave evidence on his behalf. There is a similar issue as to the number of interventions made when counsel for the Claimant was cross-examining the first witness called by the Respondent. As counsel fairly accepted, the fundamental issue, however, is not one that turns on the precise number of interventions but essentially in our judgment on the nature and quality of those interventions. In particular, in our judgment, there can be no doubt that regrettably this Employment Judge did, in conflict with the principles of law we have already summarised, enter the arena and would be perceived by the fair minded observer as making points that were not asked by way of open questions to elicit and clarify the Claimant’s evidence or other evidence but rather, for example, to cross-examine the Claimant and to put points to him seeking his agreement.
A few examples, as we have said, will suffice for this purpose, although we emphasise that we have taken the entirety of the documents into account. The first example concerns the cross-examination of the Claimant that was taking place by counsel on behalf of the Respondent. We observe in passing that we have been informed that counsel for the Respondent was a highly experienced advocate who had been in practice for some 20 years. It goes without saying that this was not a case, for example, where only one side was represented. Both sides were represented by experienced counsel. When questions were asked of the Claimant by the Employment Judge, they were asked during and while his cross-examination was going on not at the end when, as is common knowledge, Tribunal members frequently ask some questions after the parties have asked their questions. There is nothing wrong in principle with such an intervention during the course of cross-examination by one party. However, as we have already stressed by reference to the decision of this Appeal Tribunal in the East of England case, what is important is the nature and quality of those questions. If, for example, there is simply clarification sought to make sure that the Tribunal has understood correctly what the evidence is that the particular witness is trying to give, there can be no objection of principle. However, in this first example the following is noted by the solicitor for the Claimant:
“J – What Rob say?
A – You are suspended
J – Letter?
A – No letter
– ask why, he said TD said to that’s why. No reason mentioned.
J – It’s pretty obvious – you knew didn’t you?
A – Now how will I know
J – Most logical people would know that refused, rationale thought and know why – rationale logic …, must have known that?
A – If so, why the mention in letter
J – Most human beings would know”
In our judgment, that was more than simply an unfortunate and inappropriate remark, particularly that last remark about “Most human beings”. We stress that it would not be appropriate to take one or two sentences out of context. As we shall make clear at the end of this Judgment, it is the overall impression that is crucial. However, in this context we would observe that there was not just that unfortunate and inappropriate remark made at the end of that series of questions; rather, what is important is that the Employment Judge would appear to the informed and fair minded observer to be asking questions of the Claimant not to elicit clarification of his evidence but to put points to him with which he would not necessarily agree but with a view to trying to persuade him that he should agree. That is classically the essence of cross-examination. That is what advocates do; it is not what Tribunals should do.
There are other examples, but, for reasons we have already mentioned, we do not intend to go through each and every one of them – they are sufficiently set out in the documents we have already mentioned – although we would observe, in accepting the submissions made on behalf of counsel for the Claimant, that during the course of his cross-examination of the Respondent’s witness who had been called the Employment Judge, in our judgment, intervened again not to ask questions by way of clarification but in order to put to him a point that would assist the Respondent’s case and that was not necessarily the first evidence that he had given when he had been cross-examined by counsel for the Claimant.
There is one other example that, in our view, needs to be more specifically set out, because it causes real concern to us. This concerned a stage in the proceedings when the applicant was giving evidence. On a number of occasions, we are informed, counsel asked his opposite number not to speak over the witness. He emphasised in particular that the Claimant’s first language is not English. While that was going on before the Employment Tribunal there was an exchange between counsel for the Claimant and the Employment Judge that, in our judgment, causes real concern and perhaps gives an indication of how fundamentally wrong things had gone at this hearing. According to the note of the instructing solicitor for the Claimant, the following is recorded:
“J – lots of time being wasted you arguing with me.
– Mr N himself
J – make a note and move on ….
– Would ask for a short adjournment – application may be forthcoming.
J – Happens often this in East London where Counsel engage in dispute, I don’t know why.
D – My duty because client in ??? language he’s right to express himself and to give content”
An important addition to that evidence before this Appeal Tribunal can be found in the note by Ms Upadhayay that we have referred to. At page 11 of her note it is said:
“Counsel often dispute with Employment Judge in East London – Elgar [clearly an understandable mistake; that should be “Elgot”] refuse to be ‘intimidated’ but Panesar asserts that it is his duty to allow QN [the Claimant] to justify self.”
It is of importance, we think, that that contemporaneous note from a work experience student picked up on the word “intimidated” and thought it important enough to record at the time. Furthermore, we have an additional note from the instructing solicitor in the case, and finally we have the evidence of counsel himself, who has assured me at this hearing that the word “intimidated” was used to him by the Employment Judge. He disagreed with the suggestion that that was what he was seeking to do; he was, entirely properly in our view, trying to do the best that he could on behalf of his lay client, something which is in the best traditions of the Bar in this country. Advocates must be able to do their job fearlessly and independently without fear of intimidation. In our judgment, far from counsel trying to intimidate the Tribunal, this was an unfortunate example of the Employment Tribunal seeking to put pressure on a party in a way that the informed and fair minded observer would regard as unfair.