An imaginary judgment, dealing with what happens when a key piece of evidence is found from an unwelcome source
This matter comes before me as an Appeal from a decision of the Family Proceedings Court to make Care Orders and Placement Orders in respect of three young children, who in time honoured fashion, I will label A, B, and C. The eldest is just four, the youngest is six months old, born within these proceedings. The mother of all three children is Miss X. The father of the older two children has played no part in these proceedings. The father of the youngest child is Mr Y.
The facts of the case before the Court were relatively straightforward and sadly not uncommon in the cases involving public law applications for children which are being heard throughout the land. The mother of the children was proceeding very well with her care of A and B until she formed a relationship with Mr Y. Mr Y, although he seemed attractive, kind and attentive, had an unfortunate background, involving convictions for very serious sexual offences against children, he having only just been released from prison. Understandably, the Local Authority concerned, once they became aware of Mr Y’s background and involvement with the family sought to provide mother with certain advice about the merits of this relationship continuing. Expert evidence was before the Court, and was unchallenged, that Mr Y’s history, psychological make-up and lack of empathy, insight and remorse for his proven past crimes meant that he was unsafe to be around children and that any timescales for treatment were well outside of the children’s timescales and the prognosis in any event was poor.
The mother and Mr Y separated, but of course, baby C had been conceived by then.
As often occurs in these cases, concerns arose as to whether the separation was genuine, or whether it was, in effect a placatory public gesture to satisfy professionals whilst clandestinely it continued apace. Allegations of this, together with such corroborating evidence as the Local Authority were able to assemble was placed before the Family Proceedings Court and tested appropriately in evidence.
Thus far, there is nothing exceptional about the case, and this Court would be exceedingly reluctant to interfere with any findings made by the Family Proceedings Court about the factual matrix of the case or whether the relationship was, or was not continuing.
The unusual facet of the case, and the impetus behind this appeal, is that after the parents had given their evidence, but before the Guardian had given hers, the case concluded for the day, with the intention being to reassemble the next day. One of the three Magistrates who had been hearing the case, left the Court building and happened upon two adults locked in what can best be described as passionate and tender embrace. It was with some understandable embassment and chagrin that this Magistrate came to the opinion that these adults were Mr Y and Miss X, and that far from having been completely separated and with no intention to spend any time together, as had been their sworn evidence, there was a passion and intensity about the embrace that called that into question.
The next morning, the Magistrate concerned, who I will label Miss J, immediately notified the Legal Advisor of this. In that consultation, they resolved that Miss J should not discuss this in any way with the other two magistrates and that the issue should be put to the parties in order that representations could be made about the way forward. The Legal Advisor suggested to Miss J, who took this advice, that she could no longer sit as a Magistrate in resolving this particular case as she was now potentially a witness of fact. Miss J prepared a short document setting out what she had observed. It was very plain that Miss J was advised not to discuss the issue with the other Magistrates, and that no discussion of the issue other than the formal representations (and if necessary, evidence) given in Court should take place, to do ones utmost to preserve the integrity and impartiality of the other Magistrates.
If I may say so, I think that the Legal Advisor in this case acted very sagely in the most exceptional of circumstances. It is difficult to see what more she could have done.
When the document that Miss J had prepared was circulated to the parties, two camps effectively formed. As one might expect, the mother and father sought an adjournment of the case with there to be a re-hearing at which Miss J could give evidence before a completely fresh bench, untainted by any association with Miss J. The Local Authority and Guardian pointed out that the case could proceed with two magistrates and that Miss J could give evidence, which would be assessed by the bench with the same impartiality and scrutiny as any other witness and the parents recalled, adding that any other bench that could be assembled in due course to hear the case would be as likely as these two Magistrates to have sat with Miss J as some time or another, it being the nature of the Family Proceedings Court that rather than a fixed block of three Magistrates always working together, there is more of a ‘mix and match’ approach. The decision was taken to continue, and the parents representatives quite properly registered their disquiet about the unusual situation and that they reserved the right to seek an appeal of any final adjudication, not least because of the wider public interest issues that the case had thrown up.
In relation to the way the Court approached the evidence of Miss J, I can find no fault with that. A proof of evidence was available to the parties and all had seen it in advance of her giving evidence. It was made plain that she was giving her evidence as a member of the public who had witnessed something (she having left the curtilage of the Court, she was no longer effectively Miss J, Magistrate, at the time, but Miss J, person). The Legal Advisor ensured that a Turnbull direction was given in Court before the evidence was heard.
I remind myself at this point that the Court of Appeal have previously given a decision in which it was made plain that Turnbull directions on the risks of misidentification of a person is not limited to criminal trials but applicable in a family case where there is eye witness evidence about a specific individual being alleged to do certain things. This particular Legal Advisor was familiar with that case. It is a shame that more people are not. RE A (CHILDREN) sub nom EH v (1) X LONDON BOROUGH COUNCIL (2) AA (3) REA & RHA (BY THEIR GUARDIAN) (2010)  2 FLR 661
In all cases such as this, I consider that it is incumbent upon a judge to remind himself in judgment of the precise terms of the passages in R v Turnbull QB 224 in which Widgery CJ stated at 228:
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear term the judge need not use any particular form of words.
Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special
reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a
material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them”. Finally, he should remind the jury of any specific weakness which has appeared in the identification evidence.
“Recognition may be more reliable then identification of a stranger but even then when the witness is purporting to recognise someone whom he knows,
the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made. “
When the Family Proceedings Court, sitting as a bench of two, made their determination on this factual issue, they took considerable pains to analyse each and every point of the Turnbull principles in their determination. They made the finding that the evidence of Miss J was preferred, following that careful analysis to the evidence of Mr Y and Miss X, and that the couple on the day of their substantive evidence declaring effectively undying separation had been observed in the throes of considerable and lengthy passionate embrace. The Court made other findings about the relationship based on the allegations. I note, and it is of some significance, that two of the five allegations made by the Local Authority about occasions when the parents were suspected to be together were not made out because the Court felt that there was not sufficient evidence to be satisfied about them, and the Court did not make the mistake of conflating the likelihood of (a), (b) and (c) having been true, just because they had found a significant (d) to be true.
In this appeal, no criticism is made of the way that the Magistrates drew up their reasons, nor that they took into account something that was irrelevant, or failed to give sufficient weight to something that was relevant. Clearly, with one eye on the likely appeal and the need in this case because of the circumstances to be rigorous, the Facts and Reasons are an exemplar of their kind.
Counsel for the appellant mother, makes effectively one point in this appeal and it is a compelling one. I am grateful that a ‘scattergun’ approach was not taken, but the issue confined to the one which is the crux of the case. Does this decision satisfy the Sussex Justices case that justice must not only be done, it must be seen to be done.
Could the two Magistrates determining the case, no matter how much care and attention they gave the matter and no matter how hard they strove for neutrality and impartiality, really appropriately weigh and sift the evidence without giving a disproportionate weight to the fact that one witness of fact on a key disputed issue had previously been sitting by their side on the case as they heard live evidence?
Counsel for the appellant makes the strong case that if this were a criminal trial, and the witness of fact had been a member of the jury who perhaps overheard some material evidence being talked about by a defendant, the jury would be discharged and the case reheard. The Joanne Frail case, where the juror had been in communication with the defendant on Facebook whilst the jury were still deliberating was referred to
ATTORNEY GENERAL v (1) JOANNE FRAILL (2) JAMIE STEWART : R v KNOX (2011)  EWHC 1629 (Admin) as was the case where a juror had been flirting with a police officer giving evidence in the trial
R v (1) JOHN CORT (2) BRIAN FARRELL (2011)  EWCA Crim 1597 and indeed the case where an officer of the Court involved in jury selection had been socialising with members of the jury
R v CHRISTOPHER JOHN BURCOMBE (2010)  EWCA Crim 2818 and R v MICHAEL WILLIAM MCDONNELL (2010)  EWCA Crim 2352 where the jury had searched for information about the defendants on the internet.
All of which chiefly made me very relieved that I no longer conduct criminal trials, as they seem to be a hot-bed of socialisation, fraternisation and social networking pitfalls, with the court and jury room being more akin to some form of speed-dating evening than the administration of justice.
I consider that it is right and proper to draw the distinction here between a juror who has set out to act inappropriately (whether through ignorance or sheer bloody-mindedness) and a Magistate who here happened to stumble into possession of material evidence which made her a witness. Had she endeavoured to follow Mr Y or Miss X and observe them, or visit their home to watch them, then I would be in no doubt whatsoever that her conduct would be reprehensible. There is, in my judgment, a clear bright line when a person is sitting in a judicial capacity between hearing and testing the evidence that is presented in Court and endeavouring to find out more outside the Court. The latter is not acceptable. By way of illustration, it would be appropriate for a Judge to indicate to the parties that they seek to read a specific piece of research referred to in Dr Jinglebones report, but not to search on the internet for criticisms of Dr Jinglebones or photographs illustrating his vivid social life and partiality towards tequilla. There is a clear, bright line between hearing the evidence that is presented in court and making ones own enquiries, and a Magistrate or indeed Judge would step over that clear bright line at their own peril.
However, here it is different. Miss J had not desired or intended to gather evidence, rather it was a matter of happenstance – in the altered words of Malvolio “Some are born with evidence, some achieve evidence and some have evidence thrust upon them”. She turned a corner and saw what she saw and could not unsee it. Nor could she have ignored it. Nor could this information have rightly been set to one side or supressed. It was material evidence, and it was deeply unfortunate that it was Miss J who happened to fall upon it, rather than the social worker or the Guardian. It could have been worse – it could have been counsel for either of the parents, which certainly would have led to the need to a rehearing with fresh counsel.
The appellant makes the second point, arising from this, that even if there is no culpability, the impartiality of the Court is tainted inexorably by one of the tribunal giving evidence. They submit, wisely and correctly, that if this had been a County Court judge who had made the identification, mistaken or genuine, then it would have been impossible to continue the case, and that the parents should not be prejudiced by the mere happenstance that the Family Proceedings Court have three Magistrates allowing for an element of ‘redundancy’ whereby one can drop out and the hearing continue.
This is clearly a difficult case, and as the well known axiom has it (though I have not found authority for it) “hard cases make bad law” – the closest authority I have identified arises here :-
R v National Insurance Comrs, Ex pp Hudson  AC 944, 966, Lord Reid also observed,
at p 966: “It is notorious that where an existing decision is disapproved but cannot be overruled courts tend to distinguish it on inadequate grounds. I do not think
that they act wrongly in so doing: they are adopting the less bad of the only alternatives open to them. But this is bound to lead to uncertainty for no one
can say in advance whether in a particular case the court will or will not feel bound to follow the old unsatisfactory decision. On balance it seems to me that
overruling such a decision will promote and not impair the certainty of the law.”
I am certain that in this case, it was appropriate for the Court to consider the evidence of Miss J, that it was incumbent on them to consider the problems of eye witness identification evidence and give themselves a Turnbull direction, which they did. I am certain that Miss J could not play any part in the decision-making, being a witness of fact, and she did not. I am certain that had she discussed the case in any informal sense after becoming a material witness, the case should be reheard, and I am satisfied that this did not happen. I am satisfied that if Miss J had sought out this evidence deliberately, this would have indelibly tainted the entire bench and the case would need to be reheard, which she did not. I am satisfied that the Court would have to give very careful and compelling reasons for accepting Miss J’s evidence to remove any lingering suggestion that her evidence was preferred because of her status, and I am satisfied that the Court did so. I am completely satisfied that the Court were not biased, and that they did everything possible to remove any suggestion or impression of bias.
All things being equal, if one had a time machine and could revisit that hearing, I would myself have preferred a decision that the case be transferred to the County Court and for a circuit judge (who would be not associated with miss J) to hear all of the evidence and determine the case. But it is not, of course the role of the appeal court to substitute its own judgment for that of the Family Proceedings Court, but to analyse whether that decision was plainly wrong. It is my conclusion that a spectrum of possible decisions about the way forward existed for the Court – they decided to proceed with a raft of safeguards and in my determination they were not plainly wrong to do so.
Should a situation arise in the future where a Magistrate or Judge finds themselves in the unfortunate position of having to give evidence in the same case, however, I would not wish this case to be authority for any principle that they should not recuse themselves. With the benefit of hindsight, a recusal and rehearing would have been a better approach and more in keeping with the principles of R v Sussex Justices, and one would hope that should this situation ever arise again, a rehearing with a fresh tribunal would be the outcome.
I therefore dismiss the appeal.