Witness Protection: Can non-parties appeal critical findings made in a judgment which infringe their human rights?
30 November 2016
Re: W (A child)  EWCA Civ 1140 – read judgment
A Family Court judgment was severely critical of two witnesses and the applicant local authority. In an oral “bullet point” judgment at the end of the hearing, the Judge found that the witnesses, a social worker (‘SW’) and a police officer (‘PO’), had improperly conspired to prove certain allegations regardless of the truth, or professional guidelines.
Those matters were not in issue before the court or put to those concerned. Limited amendments were subsequently made to the judgment following submissions by those criticised. Unsatisfied, they went to the Court of Appeal.
The Court considered (1) whether they were entitled to appeal at all (2) whether their appeal based on Articles 8 and 6 of the Convention succeeded and (3) the appropriate remedy.
The Court held that the appellants’ Convention rights had been breached by the manifestly unfair process in the court below, so they had a right to appeal under the Human Rights Act 1998. The defective judgment was not cured by the amendments, and the findings were struck out.
The judgment addresses some interesting procedural questions regarding appeals. This post focuses mainly on the human rights issues, but the judgment of McFarlane LJ, described as “magisterial” by Sir James Munby, merits reading in full.
The Family Court judgment concerned care proceedings. An older sibling of the children concerned, “C”, had made allegations of sexual abuse against two parties to the proceedings. Those allegations were not found proved, which no-one has sought to appeal.
The “bullet point judgment” given after the hearing included findings well outside of the focus of the case. Criticisms were made against numerous professionals, the local authority and a foster carer. The Judge concluded that SW had drawn others in to a conspiracy and, with PO, had subjected C to substantial emotional abuse. He proposed to name both of them in his final judgment, and directed that SW’s employer “must be alerted to my findings as a matter of urgency” (which it was).
These matters formed no part of anyone’s case, and SW and PO, merely witnesses to the proceedings, had not been cross-examined on them, nor had the Judge asked any questions regarding his eventual findings. They came wholly out of the blue when the oral judgment was given.
One month after the hearing, a written draft judgment was circulated. Those subject to criticism sought to address the adverse findings, and two hearings took place where they made submissions. The upshot was a reserved judgment (currently unpublished, for obvious reasons) which essentially maintained the criticisms, and which named SW and PO.
SW, PO and the local authority sought to appeal.
Beware the Landmines!
Lord Justice McFarlane, in the Court of Appeal’s unanimous judgment, noted that
“…the route that these appellants must follow… is strewn with substantive and procedural legal landmines, the detonation of any one of which is likely to prevent the appellants reaching their goal”
Those ‘landmines’ were:
- Standing: SW and PO were merely witnesses in the proceedings below, not parties or even intervenors. Could they bring an appeal?
- Jurisdiction: None of the appellants sought to challenge the Judge’s determination of the sexual abuse allegations or any order. They had to establish that the ancillary adverse findings about them were appealable.
- Substantive rights: SW and PO had to establish that the findings engaged, and breached, their right to a private life. The local authority relied on its right to a fair trial in the same way.
- Remedy: The appellants had to prove that they were entitled to a remedy, and that the amendments already made by the Judge were insufficient.
Standing: Who can appeal?
Section 31K of the Matrimonial and Family Proceedings Act 1984 provides in relevant part:
“if any party to any proceedings in the Family Court is dissatisfied with the decision of the court, that party may appeal from it to the Court of Appeal”.
The Court determined that, as SW and PO had twice made submissions following the two draft judgments, they had achieved intervenor status, and this rendered them “additional parties”, per the Family Procedure Rules (s.12 (3)-(4)). In any event, the Court said, someone affected by a decision and with a real interest in it can appeal, as held in MA Holdings Ltd v George Wimpey UK Ltd  EWCA Civ 12.
Notably, the Court also held that even if neither the legislative appeal provisions or the flexible MA approach had assisted the appellants:
“…where it is established that an individual’s rights under ECHR, Art 8 have been breached by the outcome of the proceedings in the lower court, then this court has a duty under HRA 1998, s 3 to read down s31K and the court rules in such a manner as to afford that individual a right of appeal.”
It is likely that the requirement to read down rules and legislation applies equally to other appeal provisions where human rights are similarly in issue.
Jurisdiction: What can be appealed?
The three appellants only challenged subsidiary findings. Could these be appealed? The legislation is inconsistent: The Senior Courts Act 1981 provides for “appeals from any order or judgment” of the High Court, appeals from the County Court arise from “the determination of a judge or jury” and s.31K appeals are from “the decision” of the Family Court.
The leading authority did not help the appellants. In Cie Noga SA v Australia and New Zealand Banking Group Ltd  EWCA Civ 1142, the Court of Appeal held that if there was no “judgment”, “order” or “determination” being challenged, underlying factual findings could not be appealed.
The appellants argued that:
- In Cie Noga, the Court said that a factual determination “pregnant with legal consequences” might be appealable. These findings would have serious consequences;
- The Family Court Judge had refused to put the findings in to a declaration. That refusal could be appealed, which if successful would create an appealable declaration; and
- It is a fundamental principle of justice that if adverse judicial findings are to be made, the subject of them should have notice and a chance to take part in the process. The strict Cie Noga approach should not apply here.
Before its determination on jurisdiction, the Court considered the Convention issues raised.
Article 8: The right to a professional life
The Court noted that the Article 8 right to respect for private life could apply to individuals’ professional lives, as was well-established by domestic and Strasbourg case law. In R (Wright) v Secretary of State for Health  UKHL 3, Baroness Hale noted that Article 8 had been held to include the right to establish and develop relationships with others. Further, in R (L) v Commissioner of Police of the Metropolis  UKSC 3 Lord Hope held:
“Excluding a person from employment in her chosen field is liable to affect her ability to develop relationships with others, and the problems that this creates as regards the possibility of earning a living can have serious repercussions on the enjoyment of private life… She is entitled also to have her good name and reputation protected.”
The effect on the appellants was considerable. SW had been suspended by her employer, and could not work elsewhere. The Judge’s findings about PO would be disclosable in any criminal proceedings involving her and could be relied on as demonstrating ‘bad character’, compromising her ability to work as a police officer.
Procedural fairness under Article 8
Article 8 includes the right to fair process in protecting one’s private and family life, and the Court considered the procedural fairness requirement. Before the detail though, McFarlane LJ made his conclusion clear:
“…for the purposes of deciding this appeal, it is unnecessary to go beyond what must be an essential factor to be included on any list of the elements of procedural fairness, namely giving the party or witness who is to be the subject of a level of criticism that is sufficient to trigger protection under Art 8 (or Art 6) rights to procedural fairness proper notice of the case against them.”
The Court referred to a 19th century House of Lords decision: Browne v Dunn (1894) 6 R 67, expressing a principle which should be obvious to anyone in adversarial legal practice:
“… I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.”
Having heard that none of the criticisms made by the Judge were even implicitly in issue within the hearing or wider process, or put to the appellants by any party, the Court did not hesitate in holding that the process in the court below had been “intrinsically” and “manifestly” unfair.
The Court noted that the procedural rights under Article 8 reflect, although do not replicate, the common law position. It then identified three procedural safeguards of general application, necessary where an adverse finding outside of the parameters of the case may be made:
- The case in support of adverse findings must be put to the witness, if necessary by allowing them to be recalled;
- Prior to cross-examination, the witnesses should have sight of relevant evidence and be allowed time to reflect;
- Legal advice, support and/or representation should be made available to the witness, if it is determined to be necessary.
Article 6 and the local authority
The local authority (not being a person) couldn’t rely on Article 8, but Article 6 (and the common law) entitled it to a fair trial. Given the strength of its findings in relation to the “manifestly unfair” process, the Court simply recorded that the local authority’s Article 6 claim was made out for the same reasons.
Was the opportunity to make representations an effective remedy?
The parties had been allowed to return, represented, to make submissions about the findings within the judgment. The Court held that this was not good enough. Although some changes were made, heavily critical findings remained.
While it might be sufficient for a judge who is minded to make findings outside of the case’s remit to allow parties to respond, that must be done before a final decision is made. In the present case, the bullet point decision was a précis of a conclusion already reached. By the time the parties made representations, it was too late.
So… is there a remedy on appeal?
Having determined that the appellants’ Convention rights had been breached, the court found that it was not necessary to determine the issues regarding Cie Noga and other cases, regarding what can be appealed. There was a simpler solution.
A person who claims that a public authority has breached their rights under the Human Rights Act 1998 may, by section 7, bring proceedings against the authority under the Act in the appropriate court or tribunal, or rely on their Convention rights in any legal proceedings. “Legal proceedings” include an appeal against the decision of a court or tribunal (s. 7(6)). The Court held that:
“…the judge’s findings themselves are a ‘judicial act’ which, on the facts of this case, is capable of being held to be ‘unlawful’ under HRA 1998, s 7(1) and therefore the proper subject of an appeal, without having to consider whether or not it is a ‘decision’, ‘determination’, ‘order’ or ‘judgment’.”
The extreme nature of the comments made, and the wholly unfair process by which they were reached, rendered it “incumbent on the court” to provide a remedy.
That remedy was to set aside the Judge’s findings on the matters in issue. The Court made it clear that the comments were not simply being anonymised or redacted, they were removed such that they “no longer stand or have any validity for any purpose”.
Not standard procedure
The Court emphasised the rare and unusual combination of factors here, namely that the Judge decided to make highly critical findings against professionals, where such findings played no part in the way the case was presented by any party, and where the Judge did not take it upon himself to raise those criticisms prior to judgment.
This was “not a call for defensive judging… judges should remain not only free to, but also under a duty to, make such findings as may be justified by the evidence on the issues that are raised in each case before them”. There should be no change in the court’s approach to witnesses who have not been called to give evidence or to expert witnesses, who are cross-examined on the points in issue, with any criticism coming after the matters have been put squarely in issue.
While the circumstances of this appeal are (happily) unusual, various principles of general application can be drawn from it. The Court re-emphasised the procedural requirements which safeguard our substantive rights. It indicated that a court should be prepared to read down a procedural rule relating to standing for bringing an appeal where Convention rights are engaged. Finally, it demonstrated the special nature of appeals based on human rights violations. The appellant is not restricted to challenging an “order” or a “decision”: any finding of a judge can be a “judicial act” giving rise to a right of appeal, thanks to the Human Rights Act.