In the High Court, in the case of Wirral Borough Council v KR 2015 http://www.bailii.org/ew/cases/EWFC/HCJ/2015/54.html some serious Perry Mason moves were pulled.
If you don’t know who Perry Mason is (hello Rachel Gymsocks) then I’m somewhat surprised that you are reading a law blog. He is a fictional lawyer, American and suave, who had the inherent luxury of only ever representing people who were wrongly accused, and he would prove their innocence during the trial with some flamboyant move or surprise witness or dragging a confession out of a witness who had ostensibly only come to Court to say that “yes, they saw the rake that morning and it had some orange paint on the handle”.
[See also Johnny Cochrane, for a real world example, and his notorious “If the glove doesn’t fit, you must acquit” defence. Of course, cough, in that case, perhaps he didn’t enjoy all the inherent luxuries enjoyed by Perry Mason. See also “The Chewbacca defence” http://rationalwiki.org/wiki/Chewbacca_Defense
You will see that in fiction, a Perry Mason move is a lawyer doing something outside the box that proves that their innocent client is innocent, whereas in real life, a lawyer doing something outside the box to get their client off is generally more of a Chewbacca defence. This case is a Perry Mason move. There is a real, and important distinction. If the lawyer involved hasn’t been boring her clerks senseless with her tale of how she did this, I’ll be very surprised. I’d be telling this story every day for months if I’d pulled it off.
I suspect that the conversation from this point on will be
Barrister “Did I ever tell you about the time I….”
Clerk (wearily and quickly) “Yes”
This was a case involving alleged non-accidental injuries to a child.
To put the Perry Mason move into context, the LA turned up to the fact finding hearing with no case summary, no chronology and no schedule of findings sought. One of the people under suspicion was the mother’s partner, JL, who did not have legal aid and was thus unrepresented.
- First, the bundle lodged by the local authority in this case failed completely to comply with the requirements of PD27A. In particular, it failed to contain any of the documents specified at paragraph 4.3 of the Practice Direction, the so called ‘Practice Direction documents’. Thus, until 9.00am on the morning on which the hearing commenced the Court was without an adequate Case Summary, a Chronology, any Position Statements and, most significantly given the Court was being asked to make findings regarding alleged inflicted injury to an 11 month old child, no Schedule of Findings. Further, in addition to the absence of these documents, JL, as a then litigant in person, had not been provided with any of the other documents contained in the bundle (save for some very limited documentation received from the mother’s solicitor at an earlier date).
- Whilst the failure to comply with PD27A was a plain breach of that Practice Direction, it is also the case that the failure of the local authority was of particular detriment to JL and placed his right to a fair trial in significant jeopardy.
- The absence of a schedule of findings meant that the respondents to this application did not have proper notice of the particulars of the allegations made against the mother and JL. In the mother’s case this difficulty was in part, but only in part, mitigated by the fact that she had lawyers to advise her. However, as a litigant in person, JL arrived at court on the first day of the hearing without any notice of the allegations made against him or of the totality of the evidence on which the local authority relied to make good those allegations, and with no real idea that the local authority was that very day intending to invite a judge of the High Court to find that he had injured deliberately an 11 month old child. It was the most remarkable and unsatisfactory state of affairs.
- After the Court expressed its extreme displeasure at the approach of the local authority towards JL, and to avoid the need for an extended adjournment while he got to grips with the issues and, from a layman’s perspective, the relatively complex evidence in this case, the local authority agreed to fund representation for JL. The Court is grateful to Mr Jamieson of counsel and to those who agreed to come on the record to instruct him for stepping into the breach. The court is further grateful to Mr Jamieson for discharging his professional duties with evident skill notwithstanding the short notice given to him.
- Whilst the local authority is to be commended for agreeing to fund representation for JL, I must observe that such a step, whilst of course desirable, would not have been necessary had the local authority complied with the requirements of PD27A and provided JL with a properly constituted bundle.
- The requirements of the Practice Direction are clear and the President of the Family Division has recently reiterated in the strongest terms in Re L (A Child)  EWFC 15 the need for it to be complied with to the letter. The requirement to give proper notice to respondents of allegations made against them, and of the evidence in support of those allegations is equally firmly established in law and applies with equal force to cases involving litigants in person. The local authority is under a heavy obligation to ensure that the procedure at all stages is both transparent and fair, both in and out of court. The fact that a party or intervener in public law proceedings may appear in person does not relieve a local authority of its responsibilities in this regard. Indeed, it requires the local authority to be even more diligent to ensure that those responsibilities are fully and properly discharged.
To be fair to everyone involved, I am asking myself what on earth happened at the previous court hearings in this case? These were all blindingly obvious matters that the Judge who dealt with it previously ought to have set out in an order, even if none of the advocates had suggested it in their draft order. The Court have to own some of this screw up.
The Local Authority pay for the legal costs of their major suspect (and stretching their powers to spend money under the Local Government Act well past breaking point, like two hungry yard-dogs fighting over a Stretch Armstrong toy) and STILL get told off.
So that’s the context – before the hearing began, nobody had received the proper documents from the LA setting out precisely what findings were to be sought.
It was during the cross-examination of the paediatrician by mother’s counsel that the Perry Mason move emerged.
- Towards the conclusion of her cross examination of the consultant paediatrician, Ms Howe on behalf of the mother proceeded to produce a photograph which had been shown to the other parties and to the consultant but not to the court. The consultant had not been asked about the photograph during her evidence in chief. The photograph, which was undated and not exhibited to any statement describing the circumstances in which it was taken nor what it purported to show, appeared to show a bruise to the back of A’s thigh sustained, it was said by Ms Howe, when he sat down heavily on a toy whilst in his kinship placement with the maternal grandmother.
- This was the first time that the court had been put on notice that there had been an independently witnessed incident that was said to replicate the explanation advanced by the mother for the bruising to A’s thighs. The consultant paediatrician had received little better notice of it than the court and, as previously noted, had not been asked to comment on it during her evidence in chief.
I did wonder when I read this, whether Ms Howe of counsel was about to absolutely cop it from the Judge. It isn’t the done thing to produce material evidence during the course of cross-examination of an expert, having not shared it with the other side.
However, any criticism she was perhaps going to receive was completely forgotten about when THIS happened
- Upon the photograph being produced by Ms Howe, counsel for the local authority Ms Banks rose and announced to the court that the allocated social worker, Mr Morris had been present at the maternal grandmother’s property during the incident to which the photograph was said to relate, had witnessed A sit down heavily on a plastic toy and had observed a red mark on the back of A’s thigh resulting from that incident. As will become apparent, when giving evidence Mr Morris confirmed that whilst the mark had not developed into a bruise by the time he left the house, the bruise shown on the photograph corresponded to the location of the red mark that he had witnessed following A’s impact on the toy. Despite the obvious relevance of this evidence, the local authority had not prior to this hearing secured a statement from the social worker placing that evidence before the court.
- Thus it was that at the end of the cross examination of the medical evidence in this case the court was for the first time made aware of the existence of photographic and witness evidence central to the court’s determination of whether a mechanism advanced by the mother for some of the injuries to the child, which the local authority contended were inflicted by the mother or JL, could constitute a reasonable explanation for those injuries. I directed that a statement be taken from the mother exhibiting the photograph and that a statement be taken from Mr Morris detailing what he had witnessed.
- The mother makes clear in the statement taken from her at court that she had only appreciated the significance of the photograph when she spoke to Ms Howe at court. During closing submissions Ms Banks informed the court that the photograph had only been the subject of discussion between the parties at the outset of this hearing, at which point she was informed by the mother’s team that it was being said Mr Morris had witnessed the event. Ms Banks further submits that the mother did not raise the possibility of A sitting on his toys as a cause of the injury until her statement of 26 January 2015.
So there you go, a genuine Perry Mason move.
- It is nonetheless a matter of great concern that this evidence had not been identified well before the commencement of the final hearing and shortly after the mother advanced her explanation in the statement of 26 January 2015. Had it been identified, the evidence could have been produced before the court in form which complied with the rules of court and the consultant paediatrician could have been given proper notice of the evidence and a chance to consider and comment upon the same before attending court. Once again, it was an entirely unsatisfactory state of affairs.
- There is a heavy burden on those representing parties to care proceedings to ensure that their respective cases are rigorously prepared such that all evidence relevant to the advancement of those cases is identified and placed before the court in good time. This heavy burden applies equally to local authorities and includes a duty to identify and disclose evidence that may assist a respondent’s case. Discharging this burden effectively will often involve close questioning of clients in conference as parents and social workers may well not immediately appreciate the forensic significance of events, documents or photographs until advised by their lawyers.
- Whilst I am aware that it is, regrettably, less common than it used to be for the advocate who ultimately undertakes the final hearing to have an early conference with their client and thereafter continuing intimate involvement in each stage of the case management process, and acknowledging as I do the impact of an increasing scarcity of resources, such input is vital in circumstances where the early identification of issues requiring resolution at the IRH or determination at trial, and of the evidence relevant to the resolution or determination of those issues is central to our system of case management and to the just and efficient resolution of cases.
- This is not a case in which the making of a finding of non-accidental injury would have resulted in the children being permanently separated from their birth family by way of adoption. However, were I to have found that the local authority had demonstrated that the injuries had been inflicted to I, and had the mother refused to accept those findings, the local authority would have invited me not to return the children to their mother’s care. That this was a possible outcome had the advocates not discovered, at the very last minute, the evidence concerning the independently witnessed incident outlined above should serve to concentrate minds.
It will not surprise you to learn that on examining all of the other injuries and listening to the family members give evidence, the Court decided that no deliberate injuries to the child had occurred and no orders were made.
[There is a less polite term for when you as a lawyer ask a question and the whole case disintegrates as a result of that question having been asked, which would also apply here, like when you say “Do you accept that you, Francis Black, struck the child with a toffee hammer?” and the witness says “Yes”. It is called a “F**k me question” because it is really hard when you hear the answer, not to immediately say “F**k me, I wasn’t expecting THAT” under your breath]
[Have also just thought that “Wirral going on a summer holiday” would be a good headline for a blog post, so if you work at the Wirral, please can you engineer a law report that is about a conflict about whether a child can go on a summer holiday? Thank you! Ideally, the holiday will be where the sun shines brightly, and where the sea is blue]