PRINCIPLES OF JUDICIAL RECUSAL CONSIDERED: JUDGE DOES NOT RECALL MEETING A PARTY

There is an interesting issue in relation to recusal in the judgment of Mrs Justice Arbuthnot in  Griffiths v Griffiths (Decision on Recusal) [2021] EWHC 3600 (Fam).

 

THE CASE

The judge was determining issues relating to access to children. After the hearing one of the parties asked the judge to recuse herself on the grounds that she was married to a former Conservative MP, and chief whip,  and one of the parties was known to the husband and had met the judge on various occasions at political events.

THE JUDGMENT ON THIS ISSUE

The judge was quite clear that she had no recollection of meeting Mr Griffiths.  The judgment sets out the correspondence on this issue in detail and the law in relation to potential bias and recusal.

    1. Mr Griffiths concerns are the following, that he knew my husband well and had met me on “many occasions” or a “number of occasions”, my husband is a senior Conservative politician and ex Chief Whip who Mr Griffiths assumes would have disapproved of the shame Mr Griffiths’ activities brought on the Conservative Party. As a result of those matters, I should now recuse myself from further involvement in this case and transfer the case to another judge to be reheard.
    1. As I have stated in the letter I sent to Mr Griffiths on 18th November 2021:
    1. I had never heard of Mr Griffiths before I considered the papers the day before the appeal hearing took place.
    1. I had not heard of this particular sexting scandal.
    1. I have set out above the extent of any meetings I had with the two MPs Mr Griffiths worked for.
    1. After my appointment as a District Judge (Magistrates’ Courts) in October 2005, I avoided involvement with most political events.
    1. I have set out above my recollections of visits I had made to Downing Street and Buckingham Palace.
    1. Mr Griffiths said he had met me on many occasions. As I said in my letter to him of 18th November 2021, I had not met him on many occasions. I am not aware I had met him even once. I said in the letter that he had mistaken me for someone else. That remains my view.
    1. On the date of the hearing, 27th October 2021, I did not recognise Mr Griffiths. He was a complete stranger to me; I saw no reason at all to recuse myself as there was no connection between him or his ex-partner and myself (or indeed my husband).
    1. Mr Griffiths said in his first letter that he “knows James well”. I noted that they were elected at different times, they are a different generation to each other and did not either go to Israel together or sit on any committees together. Mr Griffiths has not suggested that my husband ever interviewed him for the “A list”.
    1. I cannot say that Mr Griffiths and my husband may not have passed each other in the Lobby or sat near each other in the tearoom.
    1. Mr Griffiths has not suggested that I have prejudged the issues raised by the appeal. I was discharging my judicial functions and had made only one earlier ruling which was that his wife could be identified as being a “politician” with him called her “ex-partner”. This decision Mr Griffiths had argued against and then appealed arguing that the two parties should not be identified.
    1. I bear in mind the useful guidance of Floyd LJ in Zuma’s Choice Pet Products Ltd v Azumi Ltd [2017] EWCA Civ 2133, where at paragraphs 29 and 30, it was said: “The fair-minded and informed observer does not assume that because a judge had taken an adverse view of a previous application or applications, he or she will have pre-judged or will not deal fairly with, all future applications by the same litigant”.
    1. A fair-minded observer would be informed of the matters I have set out above. The informed observer would know about the WhatsApp message sent the night before the hearing, when I asked my husband whether he knew ex MP Andrew Griffiths and now MP Kate Griffiths. His reply was the following: “I may have spoken to him (we overlapped) but don’t remember doing so; almost certain never met her”. If I had known Mr Griffiths there would have been no point in asking my husband whether he knew him. Had he replied that Mr Griffiths was a friend or someone he had worked with, I would have raised this with the parties.
    1. Furthermore, a fair-minded observer when informed of the circumstances set out above, would consider that there was no immediate link between Mr Griffith’s concerns about views he imputes to my husband and me. This is not a case where there is a so close and direct a link so as to render a presumed interest of my husband, for all practical purposes, indistinguishable from an interest of mine.
    1. The observer would bear in mind that my husband stopped being Chief Whip in 2001, which was 17 years before the sexting scandal Mr Griffiths was involved in. There have been any number of scandals involving politicians between 2001 and 2018. I don’t accept I had them but if I have prejudices and predilections in relation to his position in the case, I should be trusted to bring an objective judgement on the issues before me (Locobail). I have not commented on the allegations or adversely about the parties.
    1. In my judgment Mr Griffiths has said nothing which would lead me to conclude that this is a case where I should recuse myself. I do not consider that that informed person, having considered the facts, would conclude that there was a real possibility that I was biased.
    1. As a postscript, I add the following quotation from Ward LJ set out in paragraph 32 in El Farargy v El Farargy & Ors [2007] EWCA Civ 1149:
“It is an embarrassment to our administration of justice that recusal applications, once almost unheard of, are now so frequently coming to this Court in ways that do none of us any good. It is, however, right that they should. The procedure for doing so is, however, concerning. It is invidious for a judge to sit in judgment on his own conduct in a case like this but in many cases there will be no option but that the trial judge deal with it himself or herself. If circumstances permit it, I would urge that first an informal approach be made to the judge, for example by letter, making the complaint and inviting recusal. Whilst judges must heed the exhortation in Locabail not to yield to tenuous or frivolous objections, one can with honour totally deny the complaint but still pass the case to a colleague. If a judge does not feel able to do so, then it may be preferable, if it is possible to arrange it, to have another judge take the decision, hard though it is to sit in judgment of one’s colleague, for where the appearance of justice is at stake, it is better that justice be done independently by another rather than require the judge to sit in judgment of his own behaviour.”.
    1. I am conscious that after the hearing had taken place, quite properly Mr Griffiths has raised his recusal invitation with me informally in correspondence. I have considered his arguments and rejected them, his objection is “tenuous” but I am conscious that I am sitting in judgment on my own behaviour.
  1. I will hand this judgment down and give Mr Griffiths time to consider what his next steps should be. When 21 days have passed, if there is no appeal, I will give judgment in relation to the mother’s appeal about interim contact.