By Louise Tickle
How does a journalist expose a biased judge?
In the normal run of things, courts are open to the public and reporters, and so a judge operating from a place of prejudice is unlikely to do so for long without getting some very bad press, as well as hopefully, a sharp rap on the knuckles from the powers that be and thorough retraining before being allowed anywhere near that big red chair again.
But when courts operate behind closed doors, as in the family justice system, judges benefit from the statutory secrecy bestowed by Section 12 of the Administration of Justice Act, which bans any journalist attending a hearing from reporting what they see. Barristers are meant to stand up to judges, but this doesn’t always happen, and in any case, what a judge in a family court says, goes. For a family member who feels outraged at what they believe is a biased judge, an appeal is both risky and costly, so few take that route and fewer succeed. Out of sight and beyond effective scrutiny, family judges can, essentially, do as they please.
And if a journalist happens to find out that something untoward has taken place in a family court? Well, they need to apply to that self-same judge who they believe has behaved badly for permission to report on their conduct. And one can imagine how well that is likely to go down.
I no longer need to imagine, because as a journalist who specialises in reporting on the family justice system, I did apply to a senior family judge, His Honour Judge Haigh, for permission to order a transcript of a hearing I did not attend, but which I strongly suspected would show poor judicial practice on his part. He refused – and once I got hold of the transcript it was easy to see why. (You can read my blog about the case here, and the transcript in full here).
But save for people taking professional risks, that transcript might never have seen the light of day. And for lawyers, taking risks which challenge the system is not a popular thing to do. Eyebrows are raised. Things start to feel sticky in court. Industry disapproval is made clear.
It is scary to go against the norms of a conservative legal system, but what took place in a Manchester courtroom on 21 August would never have been published for all to read without the efforts of three people putting themselves in uncomfortable places: barristers Dr Charlotte Proudman and Chris Barnes, and high court judge Mrs Justice Lieven.
Dr Proudman and Melanie Bridgen represented the mother pro-bono in my appeal against the judge. They came on board very shortly before that hearing, but did not represent her at the Manchester court on the day in question. The mother was accompanied on that occasion by a McKenzie friend who had taken notes of what the judge said and how he managed the hearing.
Dr Proudman therefore took a risk in including certain damning excerpts of these notes in her skeleton argument written on behalf of the mother: it was too late by then to seek agreement from the other parties that the notes were an accurate representation of the judge’s words and attitudes. And so Dr Proudman took a risk – she signed a skeleton argument quoting her client’s notes of a hearing she had not attended, essentially saying that she was confident they were true.
On the basis of the mother’s skeleton, my barrister Chris Barnes and I then tried to amend our grounds of appeal against HHJ Haigh to include this new information. Amending grounds of appeal based on one of the parties’ notes of a hearing in which that party has an interest is an awkward ask. We really needed an official, independent transcript of the hearing, and ideally, the appeal I brought against an order made by HHJ Haigh on a day I did attend his court, would have been adjourned so we could get one.
But… this would not work, Mrs Justice Lieven explained in the course of the appeal, as by the time she could relist it, the original case would have come back in front of HHJ Haigh. At that point, I was free to attend his court again and ask him to reconsider his decision to ban me from reporting the matters I wished to publish (this was not the transcript, but issues I’d observed on a day I did attend his court, relating to the same case).
It was stalemate. I didn’t know what to do. I urgently wanted that transcript; if the mother’s note was accurate it would show shocking bias on the part of the judge, who had clearly tried to prevent me from getting access to it. But we were under pressure – Mrs Justice Lieven wanted to get on. The situation was solved by Chris Barnes skilfully arguing that the mother’s notes set out in the skeleton at the very least warranted the production of a transcript which I could later ask for permission to report – IF it bore out the substance of what mother’s notes said.Thankfully, Mrs Justice Lieven agreed, and in addition ordered that the transcript was made at public expense.
When it arrived, its contents were so shocking that my jaw hit the floor. I knew I had to get permission for it to be published – but would this be allowed?
Thankfully, once again, Mrs Justice Lieven did not baulk. It cannot be in the least comfortable to sanction publication of information showing a senior and experienced judge in such a poor light, but she gave permission for the whole transcript to be published, and it went up on The Transparency Project last night.
Twenty four hours on from the transcript being published along with my blog setting out my views, and a post by Lucy Reed KC giving a family lawyer’s perspective, it’s hard to know what to think. I’m pleased that my efforts to publish clear proof that a family court judge operated from a place of bias were ultimately successful – but I’m also horrified at what went on. The barristers who were in court that day should be mortified at the process they not only watched, but took part in. The judge should be ashamed. And the family justice community, which has responded to the transcript with a deafening silence, needs to get talking about the serious problems that this atrocious and outrageous episode has revealed.