In today’s Telegraph, Christopher Booker has written about a case where care and placement orders for two children were made in Rhyl Family Court in April 2014. You can read the judgment on Bailii here.
In April, HHJ Gareth Jones said in his judgment:
‘The mother has been present during the course of today, but she like the father has decided not to remain within this courtroom this afternoon for the purposes of this judgment. That decision is perfectly understandable so far as the Court is concerned.’
However, Mr Booker claims that both parents had in fact wanted to be in court and argue their case but were told by ‘their’ barrister that they were not allowed into the court room. (The named barrister was acting only for the mother, according to the judge.)
Mr Booker now writes that the case has gone to appeal:
‘Initially, after listening apparently sympathetically to the mother’s evidence, Lord Justice McFarlane, the appeal judge, sent a request to [barrister] asking for her side of the story. Only at the very last minute, several weeks later, did the barrister reply, repeating her claim that the parents had chosen voluntarily to stay outside the courtroom.
McFarlane accepted [barrister’s] version, remarking in passing, according to the mother’s notes, that “a barrister wouldn’t tell a lie”. Only a cynic might ask whether this isn’t just what many barristers in effect have to do, whenever it suits the case they are seeking to argue.’
Unfortunately I can’t find the Court of Appeal judgment that Mr Booker refers to. I have omitted the name of the barrister because I don’t see any need to add to this adverse publicity without knowing what has really happened. Her name is in pages linked to above, but the use of a phrase such as ‘just a cynic’ rather than ‘I, Christopher Booker’ is not a defence to a claim for libel.
Unlike journalists, barristers are members of a regulated profession. There is a huge amount of information on the Bar Standards Board website about how to complain about your barrister. The Telegraph does not tell us how many barristers have been referred to the BSB in respect of their ‘consistently’ betraying their clients in care proceedings, nor indeed whether this case has itself been referred.
One doesn’t need to be a cynic to ask: If Mr Booker genuinely believes that barristers routinely lie and that judges tolerate this, why can’t he write a serious article exposing this practice, rather than exploit this vulnerable couple?
I hope the barrister sues him for defamation. She will have a note of the conversation with her client. This man is getting beyond a (bad) joke now.
Suesspicious Minds wrote about this at the time, when Booker first wrote his Feb 14 article : see http://suesspiciousminds.com/2015/02/16/a-tale-of-two-telegraphs/
and http://suesspiciousminds.com/2015/02/23/a-tale-of-one-telegraph-follow-up/
i showed that la barrister allowed a lie in court papers. ive also had a bad barrister that i saked.
You have every right to complain if someone is not complying by code of conduct. People also have a choice of who they have represent them.
I have just found this very nice piece of judicial analysis of the case law on assessing credibility when there are two disputed accounts of an event – note the reasoning behind relying on contemporaneous documentary material
Excelerate Technology v Cumberbatch 2015 (and yes, I was looking at it to see if it was about Benedict Cumberbatch)
http://www.bailii.org/ew/cases/EWHC/Mercantile/2015/B1.html
The most compendious judicial statement on this is be found in the dissenting speech of Lord Pearce in the House of Lords in Onassis v Vergottis [1968] 2 Lloyds Rep 403 at p 431:
”Credibility’ involves wider problems than mere ‘demeanour’ which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person telling something less than the truth on this issue, or though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so has his memory correctly retained them? Also, has his recollection been subsequently altered by unconscious bias or wishful thinking or by over much discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compendiously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part.”
This is amplified by Lord Goff in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, p. 57:
“Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.” [emphases added].
Thanks, that is really useful about assessing credibility of witnesses. Am borrowing!