“MY LADY – THE MICROPHONE IS STILL ON”: THERE IS A LESSON HERE FOR US ALL …

The judgment of the Court of Appeal today in C (A Child) [2020] EWCA Civ 987 is an example of a problem that abounds in these days of remote and “hybrid” hearings. The Court allowed an appeal against a refusal of a judge to recuse themselves when, because a remote link was still on after the judge left court, the parties heard the judge making adverse comments about a witness.

 

THE CASE

The judge was hearing a “hybrid” hearing in care proceedings, there were serious allegations surrounding the death of a child. The mother gave evidence whilst physically present in court.   During the course of the mother’s evidence she stated she had developed a cough and felt unwell. The judge sent the mother home.

THE REMOTE LINK TO THE COURT REMAINED OPEN…

  1. The court accordingly rose to allow arrangements to be made. An associate took the judge’s closed laptop through to her room but, unbeknownst to the judge, the remote link to the court room remained open. The judge was therefore overheard having a private conversation on the telephone with her clerk about the Appellant by a number of people who still remained on the call.
  2. During the course of that conversation, the judge’s frustration at what represented a further delay in a case which was already substantially overrunning its three week time estimate, manifested itself in a number of pejorative comments made by her about the Appellant including that she was pretending to have a cough and was trying ‘every trick in the book’ in order to avoid answering difficult questions. It should be made clear that the judge at no time expressed a view as to the circumstances surrounding the death of A.
  3. Once the judge was alerted to what had happened, the parties re-joined the hearing. The judge indicated that it would be understandable if an application was made for her to recuse herself from the case and that if arrangements for another judge to hear the case were required, then she would arrange for enquiries to be made as to the availability of a different judge to rehear the case.

THE RECUSAL APPLICATION AND THE SUCCESSFUL APPEAL

The judge heard the recusal application but refused it. The mother appealed to the Court of Appeal.  The appeal was allowed.
  1. There is no suggestion that at any time prior to these comments the judge had demonstrated any bias or that she had conducted this difficult hearing with less than scrupulous fairness.
  2. Nevertheless, in our judgment the judge’s initial instinctive reaction which had been to anticipate the recusal application and to offer to find a fresh judge was the right one.
  3. What happened is undoubtedly a consequence of the tremendous pressure under which family judges at all levels find themselves at present. All over the country judges are trying, against powerful odds, to ‘keep the show on the road’ during the pandemic for the sake of the children involved. They are faced daily, as are the court staff and practitioners, with all the difficulties, technological and otherwise, presented by remote hearings generally and hybrid hearings in particular.
  4. The judge’s judgment shows how greatly she regrets what happened and it is clear that this hardworking judge genuinely believed that the process of a fair trial had not been undermined and, as had been reflected in her exemplary conduct over the previous three weeks, that she could conclude the trial with her expressed views of the Appellant forming only a limited part of what was inevitably an evolving picture.
  5. We find that a particularly troubling aspect is whether the fair-minded observer might consider that the judge had formed an unfair view of the Appellant on the basis of something that could have been but which was never put to her; namely, that she was inventing a cough in order to avoid having to answer difficult questions.
  6. We have considerable sympathy with the judge. We have, however, no hesitation in concluding that her comments did indeed fall on the wrong side of the line. The fact that the comments were intended to be private does not salvage the situation in circumstances where those comments were, unhappily, broadcast across the remote system and were made during the course of the Appellant’s evidence. We agree with Ms Grief that unfiltered comments as an expression of frustration at a situation (here, further delay in an already delayed case) are different from negative and pejorative language about a party in the case, all the more so when made while that party is in the witness box at the time..
  7. As Mr Sampson QC submits, the level of upset and distress which was undoubtedly caused to the Appellant is not to the point. We emphasise that it is necessary only to go back to the objective test: “would a fair minded and informed observer, having considered the facts, conclude that there is a real possibility that the judge was biased”. The case could not be more serious. The Appellant is accused of either causing the death of her toddler or of failing to protect him from the man who caused his death. The judge made highly critical remarks about the Appellant’s honesty during the course of her evidence, remarks which we believe a person looking in from the outside could not do other than think would colour the judge’s view of that witness and demonstrate a real possibility of bias.
  8. The judge found it to be a difficult and finely balanced decision but in our judgment here there was, in the words of Ansar, “real ground for doubt” and therefore that doubt should have been resolved in favour of recusal.
  9. Accordingly, the appeal must be allowed and the case remitted to the Family Division, for the Acting President of the Family Division to give directions for the future conduct of the proceedings before a fresh judge of the Division.