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Judicial Collision part 2

You may have thought from the QC blog last week that the typical situation where you would end up in conflict with the judge is where you wilfully push the point when it does not really need to be taken. Sadly that is often not the case. Sometimes you can end up in conflict when you have done everything to try and avoid trouble with the judge. Sometimes it is an inevitable consequence of fearlessly representing your client.

One of the most difficult situations can be where you do not think that a judge should be hearing a case. There may be a number of reasons for this. However if you ask them not to continue, you are asking them to "recuse" themselves. Some react rather better to this suggestion than others.

A QC was once undertaking an appeal in a foreign jurisdiction. The appeal was by the QC's client, a company which was in conflict with the island's government regarding the construction and effect of a particular statutory provision. However on the morning of the appeal hearing it transpired that one of the two judges had, before becoming a judge, been the standing adviser to the island's government and hence could be identified as the person who would have provided the initial advice upon which the island's government had decided to fight the case. Therefore although the precise details of the advice were unknown, it was either likely or possible that he had advised the island's government that they had a good case and hence the appellant did not. In any event he could hardly act as a judge in respect of a matter where he had advised one of the parties.

The QC regarded this as an obvious and straightforward case. If you have advised one side you cannot possibly be the judge since you cannot possibly be impartial. However, much to the QC's surprise the judge did not seem to see it that way. "I do not remember giving the advice or what the advice actually said." was the judge's line. He accepted he was the one who would have given me advice, but felt that since he had no personal recollection that is having given advice made no difference. The QC politely insisted that this was not the point. Conscious recollection was irrelevant. If you had acted for or advised one party then you could not be independent. You might be influenced at a subconscious level. You might suddenly remember something part way through a hearing. Even if all that were wrong, you could never be a judge where you had advised.

All of this was stated politely and meant politely. However the judge took a dim view of the submissions. Firstly it was obvious that he felt this was a waste of time because there was a hearing scheduled to take place and the change of judge was going to prevent it going ahead. Secondly, and erroneously, he treated the submissions as though they represented an attack on his integrity (which obviously they did not). A judge could hardly have looked more unhappy if a submission had been made that he should not hear the case because he had probably been bribed. It was obvious from his submissions that he intended to go ahead and hear the case come what may.

This would have inevitably led to a potentially complicated further appeal. However once the two judges had retired to make their decision as to whether they would proceed, it was obvious that the other judge, namely the one against whom no objection had been taken, had pointed out the realities of the situation and why this was not an attack on the judge's integrity but that nonetheless he could not sit. When the judges returned they adjourned the case off to be heard on a different occasion. The judge then proceeded to make an adverse costs order against the side which had requested the adjournment, on the basis that they ought to have found out the relevant material before the trial date. His unhappiness had not abated and this time his fellow judge let him get on with it.

However it is not only senior judges that may not like it being suggested that they are an inappropriate tribunal. A barrister was once defending a case in the magistrates. During a key part of her cross-examination, one of the magistrates was audibly sighing, gazing around as if to say "what is the point of this" and obviously "rolling her eyes".

The barrister stopped cross-examining and stated that she had noted the magistrate's audible and visible impatience with the cross-examination, and asked the magistrate if she had a problem with the cross-examination and if so what. The magistrate suggested the cross-examination was taking matters no further. (This view was somewhat startling since it related to a key aspect of the case). The barrister pointed out that the defendant was entitled to a fair trial and that a magistrate being apparently unwilling to hear the cross-examination and evidence without a theatrical display of dissatisfaction did not indicate an open mind or a fair approach. After some argument the magistrate agreed to recuse herself and in the event a fresh bench heard the case (and the defendant was acquitted).

You always have to be willing to challenge the appropriateness of the judge hearing the case or continuing to sit regardless of the likely reaction. Of course it goes without saying you must be sure of your grounds first.

Michael J. Booth QC