Occasionally laymen may get the impression that the judiciary is a sort of cabal. Actually, even lawyers sometimes think like that. Appeals are successful, but the appeal judges go out of their way to say that the first judge can’t be blamed for having got it wrong (it was all the fault of the barristers or the witnesses). But, yesterday, we saw an example of appeal judges being faced with appalling behaviour by a judge, a High Court Judge no less, and being brave enough to admit that her behaviour really was appalling.
I won’t name the judge because, despite her astoundingly unjust treatment of a litigant, I suspect she is desperately upset to have been told by no fewer than six Court of Appeal judges that she was guilty of simply dreadful injustice. Anyway, if you want to know her name you can easily find it out.
I can simplify the facts. Husband and wife took their very young child abroad. Wife returned to England without the child. She started proceedings here demanding that the husband should return the child to her. Meanwhile, the child was living with the paternal grandparents abroad. The judge ordered the husband to bring the child back to England, at the same time she made the husband surrender his passport (which meant he couldn’t go and get the child). The child did not return. The evidence was that the paternal grandparents were refusing to give the child up. The judge kept making orders, directed at the husband, for the child to be returned. The husband said he was doing his best to persuade his parents to send the child back (he bought air tickets twice). But his parents were adamant in their refusal. Then the judge struck on a wizard idea. She made an order which included a paragraph saying the court “expected” the husband to make an application in the foreign court for the child to be returned to England.
The English courts had no power to force the husband to make make an application to a foreign court. The judge knew that. It was the reason she merely said she “expected” him to do it. He didn’t. He said he would do all he could to bring his child home, but he was not prepared to sue his parents.
The wife then applied to commit the husband to prison for contempt of court. The husband asked the judge to recuse herself because, as was plainly the case, she had demonstrated that she was biased against him. The judge dismissed that application and went on to hear the committal proceedings. She ordered the husband to give evidence, even though the law is clear that someone facing committal proceedings cannot be forced to give evidence. After he took the oath she insisted that he should face cross examination by the wife’s counsel without being allowed to give evidence-in-chief first. She then cross examined him herself before, finally, allowing him to put his own case.
The judge then announced that she had found the husband guilty of a serious contempt of court because he had not done what the court had “expected” of him. He had not made an application in the foreign court. She proceeded to sentence him, without allowing him to say anything in mitigation. She ordered him to be imprisoned for eighteen months.
Thank God we have a Court of Appeal. Fortunately, the husband was only in prison for nine weeks. His appeal must have been expedited. Three Court of Appeal judges ordered his immediate release. Lord Justice Kitchin gave the main judgment. He didn’t spare his words. The judge had been wholly wrong. She should never have included the passage in her order saying the court “expected” the husband to do something the court had no power to order. She had demonstrated bias and should have acceded to the application to recuse herself from hearing the committal proceedings. She should have told the husband he didn’t have to give evidence. Having forced him to give evidence she should have allowed him to put his own case before being cross examined. She then went on to find him guilty of contempt on the grounds that he had not done that which the court had no power to order him to do. And, finally, as if all that was not enough, she sentenced him to a lengthy term of imprisonment without permitting him to say anything in mitigation.
No one could dispute the fact that the judge behaved abominably throughout. But was the husband entitled to compensation? The general rule is that, when judges make mistakes, even though innocent people end up in prison as a result, the courts will not compensate those innocent people. But there is an exception. If the judge, in the original proceedings, made errors which were so serious as to constitute “gross and obvious irregularity”, the Lord Chancellor would be liable to pay damages to the injured party.
The husband brought a claim against the Lord Chancellor. That claim was heard by Mr Justice Foskett. He concluded that the judge had not been guilty of gross and obvious irregularity. He dismissed the claim. The husband appealed to the Court of Appeal.
Many would have expected the Court of Appeal to dismiss the appeal because judges will never admit that any other judge has done something wrong. Well, they were wrong. Lord Justice Longmore, Lord Justice Jackson and Lady Justice King agreed that Mr Justice Foskett had got it wrong. The litany of errors committed by the judge who sent the husband to prison was so dreadful as plainly to amount to gross and obvious irregularity. There was a rather feeble attempt to sugar the pill. The wife’s counsel should have told the judge she was being grossly unjust in her treatment of the husband. If that had happened maybe everything would have been all right. But no one will really believe that. The judge must have known, if she gave a moment’s thought to it, that she was breaking every rule of natural justice. And it is plain that she was determined to do so.
The Court of Appeal’s judgment is to be applauded. It can’t have been easy for the Lords Justice to have to say that a High Court Judge, one of their brethren, had been guilty of gross and obvious irregularity. But they had all taken a solemn oath to “do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will.” They stuck to their oath and we can all rejoice that they did.