UK PM’s speechwriter awaits sentence
An English lawyer has pleaded guilty to perverting the course of justice. He faked a legal judgment and sent it to a father who was pleading in Taunton family court to be able to remain involved in his child’s upbringing. The lawyer, London barrister Bruce Hyman, now awaits his sentence. The judge indicated that he could receive a prison sentence. Bruce Hyman is well-known in media circles, having produced The Hitchhiker’s Guide to The Galaxy on BBC Radio. He also produced a series with Clive Anderson, at Above The Title Productions, called Unreliable Evidence.
The father, a former City financier, had attended a series of court hearings in order to make suitable arrangements to see his child following an acrimonious divorce. Shortly before one of these hearings he received an email, ostensibly from a self-help group to which he belonged, which had attached a Court of Appeal case that appeared favorable to an application he had made for the judge to stand down from the case. The father, who was representing himself, duly showed the case to the judge. At this point, Bruce Hyman, the lawyer representing the former wife, claimed tot he judge that the case was a forgery, which indeed it turned out to be.
After confirming that the self-help group had not sent him the email, the father then embarked on some detective work his own. The fraudulent email was traced via its header to a dial-up internet connection and a phone number belonging to a shop in London. The shop was able to recover CCTV footage which showed a man sending the email from an Apple laptop. The man turned out to be Bruce Hyman.
Sentencing of Hyman is due in September at Bristol Crown Court.
—Supplementary material: Text of the faked law report—
Note that genuine Appeal Court judgments carry the initials “EWCA”, not “EWHC”.
RE N (MINORS) (JUDICIAL BIAS) Court of Appeal (Civil Division) [2006] EWHC 2578 (Fam) HEARING-DATE: 15 September 2006
CATCHWORDS: Family proceedings – Final order in divorce proceedings granted residence to mother and contact to father – Subsequent residence order application made by father – Matter due to come before same judge who made order in divorce proceedings – Whether bias could be inferred as a result of judge having expressed adverse views of father at earlier hearing.
HEADNOTE: In 2003 the mother had been granted sole residence for children in divorce proceedings. The father had been granted extensive contact. In his judgment, the judge had stated that the father had displayed an aggressive attitude towards the mother, which he had cited as an example of the father’s lack of consideration for the children.
In 2005 the father had re-married and applied for a variation of the order so as to be granted shared residence. The mother opposed this. The application was listed to be heard before the judge who had made the previous order in 2004. The father had made an application that the proceedings should not be heard by that judge, but this application had been refused. The father appealed. Held – granting the appeal (1) In dealing with family matters, a judge was under a particular duty to avoid not only actual bias but also perceived bias in proceedings. In the event of such potential bias occurring, the sensible course of action was for the judge in question to remit the case to a different judge. (2) Adverse findings of fact, in particular those which went to the character or conduct of a party were capable of giving rise to the perception of bias. Although it did not follow that a judge would be predisposed against the party in question, it was highly preferable in such circumstances for the judge to withdraw. (3) In such cases it was unnecessary for proceedings to be remitted to the High Court. It was perfectly acceptable for a judge in the county court to remit a case to a judge in the same court. Indeed it was undesirable that such cases be transferred up in all but the most exceptional circumstances.
INTRODUCTION: APPEAL from an order made by Judge Jenkins in the Canterbury County Court COUNSEL: James Rattray for the father; Helena Marsden for the mother; PANEL: Wall, Moses LJJ
JUDGMENT BY-1: WALL LJ JUDGMENT-1: WALL LJ: This is an appeal from an order of his Honour Judge Jenkins at the Canterbury County Court refusing an application for an order transferring the hearing of the proceedings from himself to another judge. The application was made in the course of proceedings which concerned the residence of two children, namely, A, born on 14 January 1999 and L, born on 3 October 2002. The parties lived together unmarried for seven years and during the fifth year A was born. They were married on 6 August 1999 and just over three years later L was born. The marriage appears to have disintegrated very rapidly after that and on 2 March 2002 they separated when the father left the matrimonial home and relocated to a village approximately 15 miles away. The father made an application for a shared residence order relating to A and L. In February 2003 a full hearing took place before his Honour Judge Jenkins who, having considered all the evidence, made an order on 17 February 2003 giving sole residence to the mother, with substantial contact to the father. Setting out his reasons for making the order His Honour Judge Jenkins found that the father’s conduct towards the mother after the separation had been unusually hostile and that shared residence was likely to aggravate the animosity between the parents to the detriment of the children. Judge Jenkins also made a number of adverse findings about the father’s treatment of the mother immediately prior to the separation which included threatening and abusive behaviour. The residence and contact arrangements continued without any serious incident for nearly two-and-a-half years until the father remarried on 1 June 2005. On 5 September 2005 the father applied for a shared residence order under the Children Act 1989. A number of directions hearings followed and finally the substantive hearing was listed for 27 March 2006 with an order by His Honour Judge Ashbroke that the hearing should remain in the Canterbury County Court to be heard by Judge Jenkins on the grounds that he had detailed knowledge of the case and would therefore be best placed to hear the new application. The father indicated his concern as to Judge Jenkins’s capacity to be impartial given his previous findings and Judge Ashbroke ordered that any application that Judge Jenkins should withdraw from the case would be heard by Judge Jenkins himself. On 18 January 2006 the father made just such an application before Judge Jenkins, unsuccessfully as it turned out, which then gave rise to the present appeal. The matter came before us this morning although it is a matter of regret that this the appeal has taken so long to be listed. No explanation has been forthcoming as to the reasons for this delay. The grounds for the fathers appeal have been eloquently put by Mr Rattray and we are also grateful for his helpful skeleton argument. During his submissions he referred us to just two authorities but in essence his argument is as follows: First, that the judge wrongly exercised his discretion in not remitting the case to a judge other than himself. In doing so, counsel argues, he failed to attach sufficient weight to the appellant’s concern that the matter could not be fairly heard by His Honour Judge Jenkins given the substantial number of adverse comments contained in the relevant judgment; and second, that even if the judge could be perfectly clear in his own mind that he was capable of deciding the matter impartially, there nonetheless remained a perception of bias which was such as to cast doubt in the mind of an objective third party and that in such circumstances the judge ought properly to have withdrawn from the case. The court has carefully considered Judge Jenkins’s judgment in detail and for my part it appears to be an entirely fair and balanced account of the issues. It is certainly true that he criticises the father on a number of occasions, but it is to be expected in family proceedings where emotions and tempers so frequently run high, that one or both of the parties will conduct themselves in ways which, although later they may regret, will attract disapproval. It is equally proper for a judge to draw attention to such conduct, in particular if it has some perceptible or likely effect on the children. In my judgment it was therefore entirely right for him to state, as he did, that he was nonetheless able to perform his duties in a fair and equitable fashion without in any way prejudicing the rights of either party to a fair trial. However, the difficulty arises when one considers the perception which Judge Jenkins’s criticisms might create in the mind of a third party. While it is almost inevitable that in such cases there will be strongly expressed views about one or both parties, a judge who may have been perfectly entitled to articulate such views must be wary of the impression of bias which might arise if the case is returned to him at some future date. It is axiomatic that in dealing with family matters, a judge is under a particular duty to avoid actual bias but he must also be astute to pre-empt any suggestion of perceived bias. Harsh criticism of the kind which has characterised this case (and regrettably, many others) is potentially a cause of such perceptions and if they occur then it is clear that the sensible course of action is for the judge in question to remit the case to a different judge, who in any event will be able to review the case with fresh eyes. In this particular case the father also applied to have the case transferred to the High Court. The basis upon which he did so was that he feared that another judge in the same court might be adversely influenced by Judge Jenkins’s comments about the case. I do not consider that this argument has any merit whatsoever. To suggest that a different judge, whether in the same court or another, will be tainted by suspicion simply by reason of his acquaintance or contact with another judge is simply untenable. If this were to be the case then the transfer of cases between judges, which is so much a feature of case management in our courts today, would become impossible and the civil justice system would collapse. I cannot conceive of any but the most exceptional circumstances in which any perception of bias might arise from such a transfer. I have in mind circumstances in which the other judge had a personal connection with the case or some stake in its outcome, which in any event will always be grounds for withdrawal as is well established in the common law. For these reasons, I would grant the appeal but would order that the case be remitted to another District Judge or Recorder.
JUDGMENTBY-2: MOSES LJ JUDGMENT-2: MOSES LJ: I agree.
DISPOSITION: Appeal granted. No award of costs.
SOLICITORS: Wharton, Fletcher & Co; Stebbings.
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