“How’s that?”

When does judicial intervention cross the line into being improper and showing bias?

I recently read a very good piece on Lawtel  [other law reporting websites are available]  written by Stephen Gerlis, reporting on the Court of Appeal case ofHadi Jemaldeen v A-Z Law Solicitors 2012

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1431.html 

 As the piece is behind a paywall, and about a civil case, the issues probably won’t have come to everyone, so I thought it was worthy of a discussion in the family law context – with a nod of the hat to Mr Gerlis for his originating piece.

 The importance of the case is that the appeal hinged on whether the Judge who had heard the case had overstepped the mark when exercising control of the questions and posing his own questions, such that the appellant considered him to have been biased.

This led the Court of Appeal to run through the authorities on judicial interventions, and as we are about to embark on a brave new world of litigants in person (whether they wish to be or not) this may be an issue that crops up from time to time. It is that consideration of where the line is drawn that is potentially of interest.

I liked this quotation from Lord Denning (hence the title)

 “The Judge is not a mere umpire to answer the question “How’s that?” His object, above all, is to find out the truth, and to do justice according to law”.

 That authority is from Jones v National Coal Board [1957] 2 QB 55.  and the temptation to be able to quote a case about the National Coal Board AND Lord Denning in any family case is almost overwhelming.  We don’t get much opportunity to crowbar Lord Denning into family law cases.

[The only thing I am more tempted to say in Court, which I duly resist every time is “Does Magna Carta mean nothing to you? Did she die in vain? ” ]

 The Court of Appeal set out that the test, when looking at how the Judge managed the trial/hearing is

1. 20.   “The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

Which principle is derived from the House of Lords in Magill v Porter [2001]UKHL 67, [2002] 2 AC 357.

 Going back to the Coal Board case (and why wouldn’t we?)

23. In pursuit of that fundamental objective the judge is not required to sit silent as the sphinx. Appropriate intervention while a witness is giving evidence, even while the witness is being cross-examined, is not merely permissible but may be vital. As Denning LJ put it (page 63):

“No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind. He was anxious that the witnesses should not be harassed unduly in cross-examination, and intervened to protect them when he thought necessary. He was anxious to investigate all the various criticisms that had been made against the board, and to see whether they were well founded or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the case should not be dragged on too long, and intimated clearly when he thought that a point had been sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of cases, and have done for centuries.”

He continued (page 64):

“The judge’s part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate”.

24. So there is nothing objectionable, for example, in a judge intervening from time to time to make sure that he has understood what the witness is saying, to clear up points that have been left obscure, to make sure that he has correctly understood the technical detail, to see that the advocates behave themselves, to protect a witness from misleading or harassing questions, or to move the trial along at an appropriate pace by excluding irrelevancies and discouraging repetition. Indeed, it is, as Denning LJ recognised (page 65) his duty to do so.

So the Judge can appropriately ask questions to clarify, or to check that she has understood, she can prevent inappropriate questions being asked, and she can tell everyone to get a move on once the point has been explored sufficiently.

What CAN’T the Judge do? She must not ‘descend into the arena’

25. But there is, of course, a difficult and delicate balance to be held. The judge must not, as it is often put, descend into the arena. Denning LJ referred (page 63) to Lord Greene MR, who in Yuill v Yuill [1945] P 15, 20, had:

“explained that justice is best done by a judge who holds the balance between the contending parties without himself taking part in their disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, “he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict”.

Denning LJ continued (page 64) that it is for the advocate to make his case;

“as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost.”

Where the interventions can potentially overstep the mark is during cross-examination.   [Back to the Coal Board again  – underlining my own]

Now, it cannot, of course, be doubted that a judge is not only entitled but is, indeed, bound to intervene at any stage of a witness’s evidence if he feels that, by reason of the technical nature of the evidence or otherwise, it is only by putting questions of his own that he can properly follow and appreciate what the witness is saying. Nevertheless, it is obvious for more than one reason that such interventions should be as infrequent as possible when the witness is under cross-examination. It is only by cross-examination that a witness’s evidence can be properly tested, and it loses much of its effectiveness in counsel’s hands if the witness is given time to think out the answer to awkward questions; the very gist of cross-examination lies in the unbroken sequence of question and answer. Further than this, cross-examining counsel is at a grave disadvantage if he is prevented from following a preconceived line of inquiry which is, in his view, most likely to elicit admissions from the witness or qualifications of the evidence which he has given in chief. Excessive judicial interruption inevitably weakens the effectiveness of cross-examination in relation to both the aspects which we have mentioned, for at one and the same time it gives a witness valuable time for thought before answering a difficult question, and diverts cross-examining counsel from the course which he had intended to pursue, and to which it is by no means easy sometimes to return .”

And as, much like Marty McFly, we are no longer in the Fifties, the Court of Appeal added this

one of the changes in civil litigation since 1957, when Jones v National Coal Board was decided, is that more attention is now given to the criteria of proportionality, expedition and the allocation of an appropriate share of the court’s resources to any individual case: CPR Part 1.1. An advocate can no longer expect to have unlimited time in which to conduct his cross-examination

[And towards the end, the Court of Appeal refer to a recent family case Re J (A child) [2012] EWCA Civ 1231  in which the Judge’s interventions and curbing of cross-examination prevented the matters which went to the very heart of the case being put, and which did end up overturning the original decision]

 As this was a civil case, the decision eventually reached on the case before the Court of Appeal isn’t that important, but you can probably guess from this brief extract from the original trial transcript (Professor Rees being the appellant saying that the Judge had unfairly interrupted him) what the end result of the Appeal was 

“THE RECORDER: I am interrupting your cross-examination.

PROFESSOR REES: No, it is very welcome, your Honour.

THE RECORDER: You had better ask the questions you want to ask.

PROFESSOR REES: Okay. Thank you, your Honour. But it is helpful to have these interventions, if I may say so, because ultimately your Honour has to decide this case and …

THE RECORDER: Well, if you put a document in which nobody has opened on, the witness has never see before, it is fairer for him and for me to try and work out what this document is supposed to be telling us all.

PROFESSOR REES: Absolutely, yes …”

[Hint, if you are going to claim in an appeal that a Judge unfairly interrupted you, don’t at the time, tell the Judge that the interventions are helpful and very welcome]