Sunday, 28 August 2011

Wall attacks Hemming: Who should resign?

Sir Nicholas Wall, President of the Family Division of the Courts has called for John Hemming, the Liberal Democrat MP, to resign for having used Parliamentary privilege to criticise Doncaster Council for having sought to imprison a private investigator for having spoken about details of a case at a meeting in Westminster.

It's an interesting argument for a number of reasons.

The investigator had been libelling and slandering a father who was falsely accused of being a paedophile. Hemming has said that he spoke out, not about the rights or wrongs of the case, but on the issue of secrecy.

There can be no doubt that Hemming causes the judiciary considerable indigestion. He challenges court secrecy rules, speaks out about cases where he believes an injustice may have been done, and has caused considerable irritation by using Parliamentary privilege to break injunctions where celebrities have sought to stop details of their infidelity being made public.

I think Wall has taken the right step in releasing details of this case, which has enabled the father to clear his name. In some ways, his decision is somewhat peverse though. In defending the courts against Hemming's attacks concerning excessive court secrecy, he lifts that secrecy to defend both the court's reputation and the father's character.

There is a separate issue that the making of false allegations is very common in family court proceedings, and it is exceptionally rare to see the court be critical of those making the allegations. In our experience, this case was extraordinary in that the family court did act to address an injustice, libel and slander.

For some reason, the courts have a tendency to see false allegations in family proceedings as acceptable. I could give a great number of examples, but if I did, I would go to jail (due to the court's secrecy rules).

Hemming has also been a thorn in the side of Social Services, as he criticises them for being too quick to take children into care. We have seen judgments from cases where the judge found that social workers falsified evidence. Was any action taken about their having broken the law? No. Were their details and the circumstances of their seeking to pervert the course of justice kept secret? Yes. Could the father name them? No. Can I provide any more details? Yes. However, if I do, I could go to jail (due to court secrecy rules).

There are injustices. The test for considering evidence in the family courts is set low. A 'balance of probabilities' rather than 'beyond all reasonable doubt'.

While I have no issue with children not being named in judgments, and cases being anonymised, the excessive secrecy rules don't just protect the families, but at times dodgy social workers, suspect experts, and judges. Publishing judgments will never create the openness that Mr Hemming wants, since it is the detail of evidence that is needed for an informed decision as to whether the judge was right or wrong.

Did Hemming make an error in judgment in this case? Yes, if you follow Wall's reasoning that you can trust the courts to be unblemished in their reasoning. No, if you consider that due to court secrecy, Mr Hemming could only make a decision on the facts available to him, which were limited due to court secrecy.

Should John Hemming resign? Yes, but only if all judges who have had their judgments successfully appealed also resign.

Should Sir Nicholas Wall be calling for his resignation? Probably not if you consider the Guide to Judicial Conduct:

8.1.1 Judges should exercise their freedom to talk to the media, with ‘the greatest circumspection’. Lord Bingham has commented that ‘a habit of reticence makes for good judges’. A judge should refrain from answering public criticism of a judgment or decision, whether from the bench or otherwise. Judges should not air disagreements over judicial decisions in the press. In his speech in the House of Lords on 21 May 2003, Lord Woolf CJ referred to “the very important convention that judges do not discuss individual cases”.

John Hemming's criticism was seemingly that it was wrong to jail people, without the details of the case being made public. It appears that Sir Nicholas, by making the details of the case public, has in some ways, proved his point.

We need checks and balances, and we need people like John Hemming. He may on occasions get things wrong, but at times, so does Sir Nicholas. Resignations aren't the answer, but rather, a sincere intention to address the public's declining faith in family law.