A few thoughts on the Butler Sloss controversy

Lady Butler Sloss, a former and eminent senior judge, with significant experience through a child abuse inquiry (Cleveland) of matters of child protection has been appointed to lead an independent inquiry into historical child abuse. Interestingly, she relinquished the Diana inquest when forced to have a jury trial. The Telegraph story at the time reported:

 “These inquests now require a jury, and I do not have the degree of experience of jury cases that I feel is necessary and appropriate for presiding over inquests of this level of public interest.”

It’s not immediately clear to me what form the Child Abuse Inquiry will take or whether it would prove as challenging forensically and managerially as a jury inquest of that import. My immediate concern is with the issue of whether Lady Butler Sloss should conduct the inquiry given the possibility that the same inquiry may investigate a matter her deceased brother had some involvement in. According to the Telegraph:

“Baroness Butler-Sloss told the BBC she was unaware of her brother’s link to the controversy and said she will not resign.”

I know absolutely nothing about it,” she said. “If people think I am not suitable, then that’s up to them.”

Now I think this interesting on number of fronts. The first is that she has indicated an unwillingness to resign. This is totally unsurprising. She is batting the issue back to the Prime Minister’s office who appear to have made an unfortunate error in the vetting of their preferred candidate to lead the Inquiry. I don’t think we should read too much into it from the judge’s perspective. She has time to reflect and change her mind and, as the Diana inquest shows us, she is not afraid to respond to new events.

The second element of interest is of more concern. She indicates an intention not to resign even though she knows nothing about the allegations around her brother’s involvement. This is a position which I think will become difficult to defend unless (somehow) a clear line can be drawn – and quickly – around the events that involve the former Attorney General, Sir Michael Havers. To draw that line, one would need to know the facts of the case Mr Havers is said to have looked at and decided not to prosecute, and one might also have to know the extent to which this event was an important example (or not) of the kind of establishment behaviour that the judge is required to investigate as part of her Inquiry. Suggesting a kind of Chinese wall around that issue within the inquiry is, I think, untenable.

The third element is the idea that it is first for others, not Lady Butler Sloss, to decide if she is suitable. She plainly did not take that view in the Diana case, and I do not doubt that she does not really take that view in this case. I would suggest it is axiomatic that any judge, particularly a judge of Butler Sloss’ calibre and experience, is the first consider whether to recuse themselves from hearing a case (or an Inquiry).

The normal test for a forced recusal in a court hearing is whether there is a real or apparent bias. As it was put in the Pinochet case:

…if a judge is in fact a party to the litigation or has a financial or proprietary interest in its outcome then he is indeed sitting as a judge in his own cause. In that case, the mere fact that he is a party to the action or has a financial or proprietary interest in its outcome is sufficient to cause his automatic disqualification. The second application of the principle is where a judge is not a party to the suit and does not have a financial interest in its outcome, but in some other way his conduct or behaviour may give rise to a suspicion that he is not impartial, for example because of his friendship with a party. This second type of case is not strictly speaking an application of the principle that a man must not be judge in his own cause, since the judge will not normally be himself benefiting, but providing a benefit for another by failing to be impartial.

I should caution here that bias does not connote some sinister conspiracy. The rather simple question is whether a reasonable and fair minded individual would be likely to perceive that the judge may not be impartial. Reasonable people may differ on the view but I would suggest that, as Lady Butler Sloss reflects on the unfolding situation, she will return to the point that no judge who knew material allegations were to be made concerning a relative of his or hers in a trial – even if that relative were not a defendant – would sit on that trial. She cannot yet know whether or how material her brother’s involvement is in the handling of child abuse allegations within the ‘establishment’. But the risk that she will find herself in an impossible situation is significant enough for her, on reflection, I suspect, to step back.

And nor should anybody criticise her for that, quite the contrary. She will have respected the dignity of her office, the needs of the immediate inquiry, indeed the reputation of her brother as a senior barrister and Attorney General. The seeds of the problem almost certainly lie elsewhere. This passage, again from the Telegraph, are instructively vague. The Government does not appear to have thought through the problems which have been placed in the judges lap:

Asked if the Prime Minister knew that her brother was the former attorney general, the spokesman said: “I’m not sure that piece of information is a particular secret.”

Asked if her brother’s role was discussed, he said the “focus was on finding the right person.”

Asked whether the Prime Minister shared the concerns of lawyers who fear it will create a poor perception among victims of abuse, the spokesman said: “His view is she does command widespread respect and confidence.”

Lady Butler-Sloss may need to investigate her brother’s role in the Peter Hayman affair, the spokesman indicated. The terms of reference will be published shortly.

Asked if she would be recused from that part of the inquiry, he said: “This inquiry will be able to look at every area that is deemed relevant.”

Again, it may be understandable that the Government is working out the details as it goes along. Lady Butler Sloss was in many ways a, perhaps the, commendable choice, but the scope of the investigation almost certainly rules her out of handling the inquiry.

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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7 Responses to A few thoughts on the Butler Sloss controversy

  1. Jahbulon says:

    Surely what matters most is what her links to freemasonry are.
    The alleged Westminster paedophiles are mostly (or even all) freemasons. Just as the recent rash of prosecuted celebrity freemasons are.
    Freemasons swear to look after fellow freemasons before the law, which results in large and obvious conflicts of interest.

  2. simon jeffreys says:

    I quite agree with Richard Moorhead. Whoever is at fault, I don’t think it will be wise for her to continue.

    Also as a purely practical matter and given the time the inquiry may take, it is really sensible to appoint an octogenarian to lead it? If she should die or become too ill to continue ( I presume as must be statistically a pretty high chance even for a woman of her apparently robust health – I stand to be corrected by expert opinion) the cost not just in £££ will be surely too great a risk to run?

    Perhaps I am being obscure having been recently on holiday, but what the devil has Freemasonry got to do with this, and in particularly with a woman, given its misogynistic reputation? Or is it just that I don’t Tweet?

  3. Wigapedia says:

    Your final sentence is entirely correct. The right person, just the wrong enquiry. LJBS did not set the terms of reference and she can’t be blamed if they later cover issues which may give rise to a potential conflict. It reflects not one iota on her integrity if she steps away.

  4. Pingback: Judges and lawyers ethics: system failure? | Lawyer Watch

  5. Greg72 says:

    Were Baroness Butler-Sloss to stand down (which, personally, I don’t think she should), would a solution be to appoint a retired Scottish judge to conduct the inquiry? I certainly think it SHOULD be someone with judicial experience. A name that comes to mind is Lord Hamilton (a retired Lord Justice General and Lord President of the Court of Session. Incidentally, his title is a judicial one, and not a peerage one. An advantage is that Lord Hamilton has had no involvement with the London ‘Establishment’, while still being an eminent jurist. I may say that I have no idea whether Lord Hamilton might be interested, even if approached!
    Another option might be to appoint someone like Lord Hamilton jointly with Baroness Butler-Sloss.

  6. Graham Senior-Milne says:

    There is a very important aspect to the two enquiries recently set up; namely, that both are illegal because they are in breach of the requirement established by the case law of the European Court of Human Rights that enquiries into inhuman and degrading treatment (and child abuse is clearly both of these) should be independent.

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115621

    CASE OF EL-MASRI v. THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA (Application no. 39630/09) at 184. See also 182 to 185. In particular 184:

    ’184. Furthermore, the investigation should be independent from the executive (see Ogur v. Turkey [GC], no. 21594/93, §§ 91-92, ECHR 1999-III, and Mehmet Emin Yüksel v. Turkey, no. 40154/98, § 37, 20 July 2004). Independence of the investigation implies not only the absence of a hierarchical or institutional connection, but also independence in practical terms (see Ergi v. Turkey, 28 July 1998, §§ 83-84, Reports 1998-IV).’

    This quite clearly means that it is unlawful for a judge to carry out an investigation into allegations against judges (or where the brother of the judge in question has himself been accused of covering up related matters – as per Butler-Sloss in today’s Daily Telegraph. See http://www.telegraph.co.uk/news/politics/10955726/Brother-of-paedophile-inquiry-judge-was-accused-of-cover-up.html), for the police to investigate allegations against the police, for a civil servant (or ex-civil servant) to investigate allegations against civil servants (failure to carry out a previous investigation properly). I would also argue that it is unlawful for politicians to appoint people to head investigations into allegations against politicians (look at the appointment of Butler-Sloss; you immediately appointed someone who has a clear reason to cover up this matter herself – the accusation against her brother). A person could obtain a court order preventing the carrying out of such investigations on the basis that they are unlawful under Article 3 European Convention on Human Rights.

    Justice must not only be done but it must be seen to be done. In accordance with the principles explained in Magill v. Weeks [2001] UKHL 67 (http://www.bailii.org/uk/cases/UKHL/2001/67.html ), at 95 to 103, and with which Lady Butler-Sloss is quite familiar, you must ‘ask whether those circumstances [as I have referred to above] would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal [enquiry] was [or, in this case, will be] biased.’

    ‘The right to a fair trial – A guide to the implementation of Article 6 of the European Convention on Human Rights’ by Nuala Mole and Catharina Harby, Directorate General of Human Rights, Council of Europe, 2nd edition, August 2006, p. 33:

    ‘As to the objective test, the Court stated in Fey v. Austria that under the objective test, it must be determined whether, quite apart from the judge’s personal conduct, there are ascertainable facts which may raise doubts as to his impartiality. In this respect even appearances may be of certain importance. What is at stake is the confidence which the courts in a democratic society must inspire in the public and, above all, as far as criminal proceedings are concerned, in the accused. This implies that in deciding whether in a given case there is a legitimate reason to fear that a particular judge lacks impartiality, the standpoint of the accused is important but not decisive. What is determinant is whether this fear can be held to be objectively justified.’ (Fey v. Austria, 24 February 1993, para. 30).

    ‘The final requirement of an outward appearance of independence may involve hypothetical possibilities of interference. The mere possibility of influence will be sufficient to undermine the independence of the judiciary.’ (Legal Digest of International Fair Trial Rights, OSCE Office for Democratic Institutions and Human Rights (ODIHR), Miodowa 10, 00–251 Warsaw, Poland, 2012, ISBN 978–92–9234–828–1, http://www.osce.org/odihr/94214, p. 61). This means that the mere possibility that Butler-Sloss might be influenced by the fact that her brother has been accused of a cover up is enough to disqualify her.

    In this context, The Times states (‘Public figures named in calls to charity’, 9 July 2014), quoting Dr. Bird of the National Association of People Abused in Childhood, that “The names of people in very high places – politicians, senior police officers and even some judges – have been going round as alleged abusers for a very long time.” It is clear therefore that, under ECHR case law, any enquiries should not be carried out or set up by politicians, judges, the police or the civil service. There are plenty of people outside these groups who are independent and have the public trust.

    See also (as per the attached):

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-58559

    CASE OF LABITA v. ITALY (Application no. 26772/95) at 120 to 131

    and

    http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-80395

    CASE OF 97 MEMBERS OF THE GLDANI CONGREGATION OF JEHOVAH’S WITNESSES AND 4 OTHERS v. GEORGIA (Application no. 71156/01) at 96 to 97

  7. dbfamilylaw says:

    In this case standing down goes further than the ‘independent bystander test’. There are all sorts of reasons – eg that a litigant should not be able to choose his/her judge – why judges are entitled to treat recusal (self-dismissal) applications warily. Here Baronness B-S is not a judge; and those calling for her to stand aside are not litiigants or with a point of view in teh inquiry. Mostly we are people who are very concerned – as she, the Prime Minister and Home Secretary should be – that fairness is seen to be done. However excellent may be the recommendations of an inquiry chaired by her is will always be reduced in value by the fears expressed now and throughout as to her ability to be impartial.

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